The Issue Whether the Petitioner's decision not to renew the Respondent's professional service contract for the 1998-99 school year should be sustained.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). At the times material to this proceeding, Loretta Young was a science teacher employed under a professional service contract by the School Board and assigned to North Dade Middle School ("North Dade"). She was initially hired by the School Board as a substitute teacher in February 1987, was subsequently hired as a full-time teacher, and then placed on a professional service contract at some time after the 1994-95 school year. Ms. Young is a member of United Teachers of Dade and is governed by the Contract Between the Dade County Public Schools and the United Teachers of Dade ("Contract"). The Teacher Assessment and Development System ("TADS") is the instrument which has been used by the School Board since the 1984-85 school year for evaluating teachers' performance. TADS is certified by the State of Florida as an appropriate evaluation system, and TADS and all of the materials associated with TADS, including the training requirements, are incorporated into Article XIII of the Contract. TADS is based on the assumption that a teacher must perform certain basic teaching behaviors in order to be effective in the classroom, and it is a baseline instrument; that is, it does not distinguish between a teacher whose performance is minimally acceptable and a teacher whose performance is exceptionally good. The assessments of teacher performance are derived from actual observations of the teacher teaching in the classroom. The observations normally last for an entire class period. TADS interim and annual evaluations are normally done by school principals or their designees, but the actual observations of a teacher's performance can be done by anyone on an administrative level who is certified as proficient in the use of the system. Certification requires four days of training, and a person is not considered proficient in the system unless he or she passes several examinations. The number of times each year a teacher is observed as part of the TADS process is based on the teacher's contract status. A teacher under a professional service contract must be observed at least one time during the school year unless the teacher has received an annual evaluation of unacceptable at the end of the previous school year. In such a situation, several observations are required because the deficiencies on which the unacceptable evaluation is based are considered remediated, or corrected, only when the teacher achieves two consecutive acceptable summative decisions, or assessments.1 Only then can such a teacher receive an annual evaluation of acceptable. The TADS manual provides the framework for assessing the classroom performance of a teacher. It is divided into several parts: The Classroom Assessment Instrument contains assessment items, directions, definitions, and the ground rules for making an observation; the Record of Observed Deficiencies/Prescription for Performance Improvement ("Record") is a form designed to assist the observer in organizing the information derived from an observation; the Interpretive Guide, describes in detail the teaching behaviors which are to be the subject of the observation, together with an explanation of the basis for acceptable performance ratings in each category. TADS is divided into two sections. Component A deals with teaching behaviors which are the subject of observation of the teacher's performance in the classroom. The decision categories included in Component A of TADS and the specific behaviors, or indicators, are the following: CATEGORY I - PREPARATION AND PLANNING THE TEACHER SHOWS EVIDENCE OF PREPARATION AND PLANNING IN STRUCTURING THE LEARNING EXPERIENCES OF STUDENTS. The teacher develops lesson plans. The classroom activities reflect evidence of effective instructional planning. CATEGORY II - KNOWLEDGE OF THE SUBJECT MATTER THE TEACHER DEMONSTRATES SUBJECT MATTER COMPETENCE WHILE TEACHING. Subject matter content. Subject matter presentation. CATEGORY III - CLASSROOM MANAGEMENT THE TEACHER ADMINISTERS ACTIVITIES WELL SO THAT PUPILS ARE ABLE TO UNDERSTAND EXPECTATIONS AND WORK EFFICIENTLY WITH LITTLE DISRUPTION. Most of the observation period is devoted to some form of instruction rather than to organizational activities, i.e., roll taking, distribution of supplies/materials and regrouping for instruction. The teacher uses strategies to prevent, identify and redirect off-task learners. Pupil behavior is managed appropriately. CATEGORY IV - TECHNIQUES OF INSTRUCTION THE TEACHER INSTRUCTS AT LEVELS WHICH ARE COMMENSURATE WITH THE INTELLECTUAL AND DEVELOPMENTAL NEEDS OF LEARNERS, PRESENTS CONTENT IN SEQUENTIAL AND ORDERLY FASHION, AND FACILITATES INTERACTIONS PERTINENT TO LESSON OBJECTIVES. Instructional materials and methods are appropriate to the needs and abilities of the learners. Pupil performance on learning objectives is monitored. Opportunities are provided for verbal interaction. Opportunities are provided for active involvement. Media are used to facilitate instruction. Instruction follows a sequence. Clear explanations and directions are provided. Directions and explanations are clarified when necessary. CATEGORY V - TEACHER-STUDENT RELATIONSHIPS THE TEACHER ESTABLISHES POSITIVE AND CONSTRUCTIVE RELATIONSHIP WITH STUDENTS TO STIMULATE AND MAINTAIN A POSITIVE LEARNING ENVIRONMENT. Attempts to systematically involve all students in class activities. Promotes a positive interpersonal environment. CATEGORY VI - ASSESSMENT TECHNIQUES THE TEACHER UTILIZES A VARIETY OF INFORMAL AND FORMAL ASSESSMENT TECHNIQUES WHICH MOTIVATE AND ENABLE STUDENTS TO LEARN AND WHICH ASSIST THE TEACHER IN UNDERSTANDING THE DEGREE OF STUDENT LEARNING AND THE DEGREE TO WHICH INSTRUCTIONAL OBJECTIVES ARE BEING ATTAINED. Makes informal assessments of student learning and progress during the lesson. Makes formal assessments of student academic and/or vocational progress. Component B of TADS consists of Category VII, which measures a teacher's performance of his or her professional responsibilities. Teachers are assessed on a continuing basis with respect to this category, and the decision categories for the professional responsibility component are the teacher's compliance with School Board rules and with the provisions of the Contract. Data relating to professional responsibility are used only in making the decision regarding a teacher's annual evaluation. The Record is an essential component of TADS. It is the form in which the person conducting a formal observation of a teacher's performance describes in detail the observed behavior that is found deficient, organized by categories. The observer also includes in the Record a detailed description of "prescription plan activities" designed to assist the teacher in correcting the observed deficiency or deficiencies and to identify resources, usually school personnel, which the teacher may or must consult in order to complete the prescribed activities. A date by which the activity must be completed is identified in the report, as well. The teacher is entitled to provide in the Record an explanation of the behavior that was cited as deficient. TADS was used in assessing Ms. Young's teaching performance, and most of the observations of her classroom teaching lasted two hours because this was the length of a class period for her science classes, many of which were on block scheduling. Ms. Young began the 1996-97 school year "on prescription,"2 as a result of an external observation conducted on May 30, 1996, by Elizabeth Rivero, an assistant principal at North Dade, and Dr. Gus Loret de Mola, a District Science Supervisor. In this observation, Ms. Young's performance was found unacceptable in parts A and B of the preparation and planning category, in all three parts of the class management category, and in parts F and G of the techniques of instruction category. The Report contained prescription plan activities which Ms. Young was expected to complete in August and September of the 1996-97 school year. Ms. Young's TADS Annual Evaluation reflected an overall unacceptable rating, and a Summary of Conference-for-the- Record held June 6, 1996, reflects that Ms. Young was advised of this rating and of the fact that the prescriptions contained in the Record would carry over into the 1996-1997 school year. On September 19, 1996, Eunice Davis, who became principal of North Dade in September 1996, conducted a formal observation of Ms. Young's teaching performance as she taught a science class. In the Record of the observation, Ms. Davis identified two deficiencies in part B and three deficiencies in part C of the classroom management category and two deficiencies in part F and two deficiencies in part G of the techniques of instruction category. The deficiencies in classroom management related generally to Ms. Young's failure to redirect students who were either disruptive or off-task and her failure to make clear to the students her expectations regarding their behavior. The deficiencies in techniques of instruction related generally to Ms. Young's failure to put the components of the lesson in the appropriate sequence, her failure to provide closure of the lesson, and her failure to explain and/or demonstrate clearly an assignment involving use of a ruler which the students obviously did not understand. Ms. Davis included prescription plan activities for each deficiency identified, which were to be completed by October 11, 1996. Ms. Young provided in the Record an explanation of why she did not deal appropriately with a student who kept her head on her desk for approximately thirty minutes of the class period, but no changes were made in the Record regarding the cited deficiencies in Ms. Young's teaching performance. On December 11, 1996, a Mid-Year Conference-for-the- Record was held with Ms. Young, Ms. Davis, Ms. Rivero, and Georgeanna Vagias, Ms. Young's union steward. The conference was summarized in a memorandum dated December 11, 1996. As recited in the summary, one purpose of the conference was to review Ms. Young's performance assessment to date. Ms. Young was reminded that she had received an unacceptable observation on September 19, 1996, followed by an acceptable observation on October 21, 1996, which resulted in a summative assessment of unacceptable. Ms. Young was further advised that, because she had been rated unacceptable in her TADS annual evaluation for the 1995-96 school year, remediation of her cited deficiencies would be accomplished only when she had received two consecutive summative ratings of acceptable. Additional assessment procedures were explained to Ms. Young, and she stated she had no further questions. In addition to the deficiencies found in Ms. Young's performance in the classroom assessment component of TADS during the fall of 1996, Ms. Young was cited for deficiencies in the area of professional responsibility. These deficiencies were discussed during the December 11, 1996, Mid- Year Conference-for-the-Record. As recited in the summary of the conference dated December 11, 1996, the other purpose of the conference was to review the results of an investigation into an incident in which Ms. Young allegedly committed battery on a student. Ms. Davis read the statements of Ms. Young, the victim, and the witnesses to the incident during the conference. Ms. Young was given the opportunity to speak, and she stated that she was not guilty of the offense charged; in response to a question from the union steward, however, Ms. Young admitted that she had touched the student. After reviewing all of the statements and the results of the investigation, Ms. Davis concluded that the charge against Ms. Young was substantiated. According to the summary, the resulting discipline consisted of the Conference-for-the- Record and the preparation of a TADS Record of Observed Deficiencies/Prescription for Performance Improvement. The Record, prepared December 11, 1996, reflected two deficiencies in the professional responsibility category. Ms. Young was cited for being non-compliant with School Board rules relating to corporal punishment and to the responsibilities and duties of teachers and with the portion of the Dade County Public Schools/United Teachers of Dade Contract dealing with student discipline. Ms. Young was also cited for being non-compliant with site directives regarding the use of physical means to discipline students. In the Record, which Ms. Davis signed on December 17, 1996, she included prescription plan activities to assist Ms. Young in remediating these deficiencies, with a completion date of February 17, 1997. Ms. Young provided an explanation of the incident in the Record, in which she stated that, as she closed the door of the classroom from the outside (because she needed to make a quick trip to the office), the victim grabbed the door handle and tried to keep her from closing the door. Ms. Young stated in her explanation that she "simply removed [the student's] hand from the door." Ms. Young's mother died in the winter of 1997, and Ms. Young was absent from North Dade beginning on January 6, 1997. In a letter dated February 11, 1997, Ms. Davis requested that Ms. Young notify the school with respect to her employment intentions. The options presented to Ms. Young were to notify Ms. Davis of the date she intended to return to school, to request leave, to resign her position, or to retire. Ms. Young responded by informing Ms. Davis that she intended to return to work on March 3, 1997, and she did so. During the time that Ms. Young was absent from school, Ms. Davis notified Ms. Young that performance deficiencies cited during the 1996-97 school year had not been remediated and that she was recommending that Ms. Young's professional service contract not be renewed for the 1997-98 school year. This information was conveyed to Ms. Young in a letter dated February 20, 1997, with the reference "CONFERENCE DATA DELINEATED FOR RECOMMENDATION FOR NON-RENEWAL OF PROFESSIONAL SERVICE CONTRACT." The information was provided to Ms. Young by letter because she was absent during the time that the conference was required to be conducted. A copy of Ms. Young's interim evaluation, in which her performance was rated unacceptable, was enclosed with the letter. Ms. Young was advised in the letter that assessment procedures would continue and that a conference-for-the-record would be held when she returned to school. Ms. Young signed the interim evaluation form on February 24, 1997. The promised conference-for-the-record was held on March 7, 1997; in attendance were Ms. Young, Ms. Davis, Thomas Sippio, assistant principal at North Dade; and Georgeanna Vagias, Ms. Young's union steward. The summary of the conference, dated March 10, 1997, recites that Ms. Young was advised that it had been recommended that her professional service contract not be renewed because her first summative assessment for the 1996-97 school year was unacceptable, based on the unacceptable observation conducted on September 19, 1996, and on an acceptable observation conducted on October 21, 1996. According to the summary, Ms. Young apprised that, because she had received an annual evaluation of unacceptable for the 1995-96 school year, remediation of the deficiencies in performance would occur only when she achieved two consecutive acceptable summative assessments. Ms. Young was also informed at the conference that, should her professional service contract not be renewed, the possibility existed that she would not be appointed for an annual contract. The summary reflects that Ms. Young indicated during the conference that she understood the seriousness of her situation. In a letter dated March 10, 1997, the Superintendent of Schools notified Ms. Young that she was being charged with unsatisfactory performance during the 1996-97 school year in the area of "Category VII-Professional Responsibilities." Ms. Young was further advised that her employment might be terminated if the performance deficiency was not corrected during the 1997-98 school year. Ms. Young was offered a meeting with Dr. Joyce Annunziata, Senior Executive Director of the School Board's Office of Professional Responsibility, to discuss her unsatisfactory performance and her right to request a transfer. Finally, Ms. Young was notified that her performance would continue to be evaluated during the remainder of the 1996-97 school year and during the 1997-98 school year. In a letter dated March 20, 1997, Dr. Annunziata advised Ms. Young that she had not been recommended for renewal of her professional service contract and that the School Board had acted on this recommendation: Assessment of your performance will continue throughout the 1996-97 and 1997-98 contract years as a follow-up to the completion of prescriptive guidelines. This is your official notification that unless the performance deficiencies are remediated, your employment with Dade County Public Schools will terminate at the close of the 1997-98 contract year. On March 21, 1997, Ms. Rivero conducted another formal observation of Ms. Young's teaching performance as she taught a seventh grade science class. In the Record of the observation, Ms. Rivero identified two deficiencies each in parts A and B of the planning and preparation category; three deficiencies in part B and two deficiencies in part C of the classroom management category; and two deficiencies in part A of the techniques of instruction category. The deficiencies in preparation and planning generally related to Ms. Young's lack of a lesson plan, with the resulting lack of the required competency-based curriculum objectives for the lesson. The deficiencies in classroom management related generally to Ms. Young's failure to redirect students who were either disruptive or off-task. The deficiencies in techniques of instruction related generally to the lack of appropriate instructional materials and methods. Ms. Rivero included prescription plan activities for each deficiency identified, which were to be completed by April 16, 1997. Ms. Young provided in the Record an explanation of her performance with respect to each deficiency identified by Ms. Rivero, but Ms. Rivero concluded that the explanations were not sufficient to change her determination of the deficiencies in Ms. Young's teaching performance. Ms. Young was given an overall summary rating of unacceptable in the summative assessment of her teaching performance signed by Ms. Rivero on March 26, 1997. This rating was based on the October 21, 1996, and March 21, 1997, formal observations of Ms. Young's teaching performance. The overall rating derived from ratings of unacceptable in the preparation and planning, classroom management, and techniques of instruction categories. Because Ms. Young had two consecutive summative assessments in which her teaching performance was rated unacceptable, an external observation of her teaching performance was conducted on April 23, 1997, by Ms. Davis and Ted Boydston, a District Science Supervisor. Ms. Young was observed teaching a seventh grade science class. In the Record of the observation, Ms. Davis and Mr. Boydston identified two deficiencies in part B of the planning and preparation category; two deficiencies each in parts A and H and three deficiencies in part E of the techniques of instruction category; and three deficiencies in part B of the assessment techniques category. The deficiencies in preparation and planning related generally to Ms. Young's failure to develop a lesson plan that filled the entire class period and her failure to adhere to the lesson plan she had prepared. The deficiencies in techniques of instruction related generally to the lack of appropriate instructional materials and methods; Ms. Young's failure to use any media other than the chalkboard to demonstrate lab activity (it was noted that she did not use the chalkboard effectively); and her failure to correct wrong answers and to clarify the confusion of individual students and of the class as a whole. The deficiencies in assessment techniques related generally to Ms. Young's failure to develop effective tools to assess instructional objectives and to use more than one kind of assessment tool. Mr. Boydston and Ms. Rivero included prescription plan activities for each deficiency identified, which were to be completed by May 16, 1997. Ms. Young chose not to provide an explanation of her performance in the Record with respect to the deficiencies cited. Another external observation of Ms. Young's teaching performance was conducted on May 28, 1997, by Thomas Sippio, an assistant principal at North Dade, and Carnell White, the Director of District I of the school district. Ms. Young was observed while she was teaching a seventh grade science class. In the Record of the observation, Mr. Sippio and Mr. White identified two deficiencies each in parts B, F, and G of the techniques of instruction category. These deficiencies in techniques of instruction related generally to Ms. Young's failure to provide feedback to the students or to suggest ways that the students could improve their performance; her failure to establish the necessary background for the planned lesson or to complete the lesson within the class period; and her failure to communicate clearly with the students and to explain matters about which the students were confused. Mr. Sippio and Mr. White included prescription plan activities for each deficiency identified, which were to be completed by September 22, 1997. Ms. Young chose not to provide an explanation of her performance in the Record with respect to the cited deficiencies. On June 11, 1997, a Conference-for-the-Record was held with Ms. Young, Ms. Davis, and Ms. Rivero in attendance.3 As recited in the summary dated June 13, 1997, the purpose of the conference was to discuss Ms. Young's unacceptable performance and her future employment with the Miami-Dade County public school system. Ms. Young's performance to date was reviewed; she was offered assistance to help her improve her performance in the 1997-98 school year; she was advised that her teaching performance was rated unacceptable in her annual evaluation for the 1996-97 school year and that her salary was frozen as a result; she was informed that a teacher could be terminated from employment if two years of unremediated performance deficiencies were accumulated; and she was offered assistance from the Dade County School Referral Agency. According to the summary, Ms. Young acknowledged during the conference that she understood the seriousness of her position. In her TADS Annual Evaluation for the 1996-97 school year, Ms. Young was rated unacceptable in the following Component A categories: preparation and planning; classroom management; techniques of instruction; and assessment techniques. Ms. Young was also rated unacceptable in Component B, the professional responsibility category, of the TADS. The annual evaluation was based on observations conducted on September 19, 1996; December 11, 1996; March 21, 1997; April 23, 1997; and May 28, 1997. On October 10, 1997, Ms. Rivero conducted the first observation of Ms. Young's teaching performance for the 1997- 98 school year. Ms. Young was observed as she taught a science class. In the Record of the observation, Ms. Rivero identified one deficiency in part B of the planning and preparation category and two deficiencies each in parts A and C and three deficiencies in part B of the classroom management category. The deficiency in preparation and planning was based on Ms. Rivero's observation that Ms. Young completed less than half of the lesson outlined in the lesson plan for that class. The deficiencies in classroom management were related generally to Ms. Young's failure to use class time efficiently, her failure to redirect or effectively redirect students who were either disruptive or off-task, and her failure to make her students aware of her expectations regarding their behavior. Ms. Rivero included prescription plan activities for each deficiency identified, which were to be completed by November 3, 1997. Ms. Young chose not to provide an explanation of her performance in the Record with respect to the cited deficiencies. On December 17, 1997, a Mid-Year Conference-for-the- Record was held, with Ms. Young, Ms. Davis, Ms. Rivero, and Ms. Vagias, Ms. Young's union steward, in attendance. As recited in the summary, the purpose of the conference was to discuss Ms. Young's unacceptable performance assessment to date and her future employment with the Miami-Dade County public school system. Ms. Young was reminded that she had received an unacceptable observation on October 16, 1997, followed by an acceptable observation on December 11, 1997, which resulted in a first summative assessment of unacceptable. Ms. Young was advised that, because her TADS annual evaluation for the 1996-97 school year was unacceptable, she needed two consecutive acceptable summative decisions for remediation of the cited performance deficiencies. She was further advised that her employment with the school system could be terminated if she had unremediated performance deficiencies for two consecutive years. According to the summary, Ms. Young acknowledged at the conference that she understood the seriousness of her situation and knew what she needed to do to remediate the performance deficiencies. On February 20, 1998, Thomas Sippio, an assistant principal of North Dade, conducted a formal observation of Ms. Young's teaching performance as she taught a science class. In the Record of the observation, Mr. Sippio identified two deficiencies each in parts B and C of the classroom management category and three deficiencies each in parts A, B, and H, four deficiencies in part C, and two deficiencies each in parts F and G of the techniques of instruction category. The deficiencies in classroom management related generally to Ms. Young's failure to redirect students who were off-task and her failure to make clear to the students her expectations regarding their behavior. The deficiencies in techniques of instruction related generally to Ms. Young's failure to use materials and methods appropriate for the needs of her students; her failure to explain the lesson, to acknowledge many students who had questions, and to answer adequately those questions she did address; her failure to provide feedback to students about the strengths and weaknesses in their performance; her failure to provide information necessary for the students to understand the lesson; and her failure to clarify the confusion of most students in the class. Mr. Sippio included prescription plan activities for each deficiency identified, which were to be completed by March 16, 1998. Ms. Young chose not to provide an explanation of her performance in the Record with respect to the cited deficiencies. On March 9, 1998, a Conference-for-the-Record was held, with Ms. Young, Ms. Davis, Ms. Rivero, and Ms. Vagias in attendance. As recited in the summary dated March 16, 1998, the purpose of the conference was to discuss Ms. Young's performance to date, her prescriptive status, and her future employment with the Miami-Dade County public school system. Ms. Young was reminded that she had received an unacceptable observation on October 16, 1997, followed by an acceptable observation on December 11, 1997, which resulted in a first summative assessment of unacceptable and that she had received an unacceptable observation on February 20, 1998, which resulted in a second summative assessment of unacceptable. Ms. Young was further advised that, because she had been rated unacceptable in her TADS annual evaluation for the 1995-96 school year, remediation of her cited deficiencies would be accomplished only when she had received two consecutive summative ratings of acceptable. Ms. Young was advised that her employment with the school system could be terminated if she had unremediated performance deficiencies for two consecutive years. According to the summary, Ms. Young was also told that she would receive an unacceptable annual evaluation for the 1997-98 school year if she did not remediate all cited deficiencies. Finally, Ms. Young was given an EMP-7 Instructional Form, in which it was recommended that she be terminated at the end of the 1997-98 school year. Ms. Young voiced several concerns during the conference, and these were addressed by Ms. Davis and Ms. Rivero. The letter from the Superintendent of Schools notifying Ms. Young that he was recommending that her professional service contract not be renewed for the 1998-99 school year was dated March 12, 1998. The School Board considered the recommendation at its meeting on March 18, 1998, and decided not to renew Ms. Young's professional service contract and not to reappoint her to a teaching position for the 1998-99 school year. Nonetheless, because Ms. Young had two consecutive summative assessments in which her teaching performance as rated unacceptable, an external observation of her teaching performance was conducted on May 5, 1998, by Ms. Davis and Dr. Gustavo Loret de Mola, a District Science Supervisor. In the Record of the observation, Ms. Davis and Dr. Loret de Mola identified one deficiency in part A and three deficiencies in part B of the knowledge of subject matter category; one deficiency in part A and two deficiencies in part C of the classroom management category; and four deficiencies in part F and two deficiencies in part H of the techniques of instruction category. The deficiencies in knowledge of subject matter were related generally to the existence of substantive errors in Ms. Young's presentation and to her failure to present information in the appropriate sequence, her failure to address important aspects of the topic being presented, and her failure to present information on more than one cognitive level. The deficiencies in classroom management related generally to Ms. Young's failure to begin the lesson promptly, her failure to make her expectations regarding behavior clear to the students, and her failure to deal appropriately with students who were disruptive and/or off- task. The deficiencies in techniques of instruction related generally to Ms. Young's failure to establish a background for the lesson, her failure to include necessary topics, her failure to present information in an appropriate sequence, and her failure to assess and appropriately address her students' confusion. Dr. Loret de Mola and Ms. Davis included prescription plan activities for each deficiency identified, which were to be completed by September 25, 1998. Ms. Young chose not to provide an explanation for her performance in the Record with respect to the cited deficiencies. Ms. Young received a rating of unacceptable in her TADS annual evaluation for the 1997-98 school year, and the Superintendent's non-reappointment nomination was not rescinded. In her defense, Ms. Young testified that she always prepared good lesson plans and kept order in her classroom. She testified that she always did every activity prescribed for her in the records of the observations in which her performance was found unacceptable. Finally, Ms. Young attributes the unacceptable observations to bad motives on the part of the persons conducting the observations.4 Ms. Young's observations regarding the motives of those persons evaluating her performance are rejected as contrary to the more credible proof presented by the School Board. The evidence presented by the School Board is sufficient to establish that Ms. Young's teaching performance during the 1996-97 and 1997-98 school years was unsatisfactory and remained unremediated at the end of the 1997-98 school year. The evidence is also sufficient to establish that Ms. Young was provided with the required notices of her unsatisfactory performance and was offered appropriate assistance and inservice training opportunities during the 1996-97 and 1997-98 school years to assist her in improving her performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order sustaining its decision not to renew Loretta L. Young's professional service contract for the 1998-99 school year. DONE AND ENTERED this 3rd day of August, 1999, in Tallahassee, Leon County, Florida. ___________________________________ PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1999.
The Issue Whether just cause exists to terminate Respondent from her employment with the Sarasota County School Board.
Findings Of Fact GENERAL BACKGROUND Petitioner is responsible for operating the public schools in the Sarasota County School District and for hiring, firing, and overseeing both instructional employees and non- instructional “educational support” employees within Sarasota County, Florida. At all times pertinent to this case, Respondent was employed by the Sarasota Board as a teacher at Booker. Respondent holds a multi-grade integrated teaching certificate, which allows her to teach middle school through ninth grade students. Respondent taught high school level algebra during the 2012-2013 and 2013-2014 school years, and social studies during the 2014-2015 and 2015-2016 school years at Booker. Booker is a Title I public school which has approximately 800 to 900 students, and 60 to 80 instructional personnel. Ms. Frost is now the principal at Booker, having previously served as one of its assistant principals. At the beginning of each school year, teachers report one week prior to the students (planning week). During planning week, teachers are reminded of the school’s expectations for the coming year, they develop lesson plans for the coming year, they set up their individual classrooms, and they are provided additional professional development. Booker’s administrators set high standards for their teachers and students. The pertinent parts of the performance responsibilities within the job description for instructional teachers are as follows: *10) Establish and maintain effective and efficient record keeping procedures.7/ * * * *(13) Participate in the development and implementation of IEP’s, EP’s & 504 Plans for exceptional education students, as appropriate. * * * *(15) Interpret data for diagnosis, instructional planning and program evaluation. * * * *(21) Apply appropriate instructional modification for students with special needs. * * * *(27) Communicate effectively, both orally and in writing, with other professionals, students, parents and the community. * * * *(35) Prepare all required reports and maintain all appropriate records. There was no dispute that a collective bargaining agreement (“CBA”) existed between the School Board and the Sarasota Classified/Teachers Association (SC/TA). Article XIX of the CBA references the evaluation of students. The pertinent part of Article XIX includes: Teachers shall maintain the responsibility to determine grades and other evaluations of students within the terms of the grading regulations of the Sarasota County School system. Ms. Frost believes that every child deserves a “high quality education” and she looks for highly effective teachers to ensure they are providing quality education for all Booker’s students. Ms. Frost maintains that “regardless of what the socioeconomic situation might be for [the] children, they deserve to be educated, obtain a college- and career-readiness education.” Booker teachers are expected and required to teach the Florida standards, which are “much more rigorous standards than” before. These standards require “teachers to be more deliberate about their planning, . . . classroom procedures, and instructions” and develop a student-centered classroom. A Weingarten hearing (Weingarten) is conducted as a fact-finding meeting where an employee is asked to attend and answer questions about whatever situation is being investigated. The employee may appear with or without representation. Based on the facts obtained during a Weingarten hearing and the investigation, a determination is made whether any disciplinary action is necessary. A Professional Learning Community (PLC),8/ is composed of all teachers in a specific grade level and subject area. During a PLC meeting, its members may discuss lesson planning, joint tests or assessments for each unit, goals, and students’ accomplishments. The PLC leader (or one of its members) is required to document attendance and the content of the discussions to Booker’s administrator. The PLC meeting times are established during the planning week at Booker and attendance is required. In the event a teacher is off-campus during the regularly scheduled PLC meeting time, their absence may be excused. The Student Information System (SIS) maintains students’ schedules, contact information for students and their parents or guardians, and other pertinent student information. The SIS is controlled through user name and password protection, and all the information contained in the SIS is not available to teachers. Gradebook is an electronic system by which teachers are to input students’ grades (assignments, projects, tests and exams) on a regular basis. Parents can access their student’s grades via the internet (including a telephone application) to monitor the student’s progress in each class. Booker’s expectation is that grades will be inputted on a regular basis, preferably within a week of the completion of the assignment or test. Once all the grades are entered, Gradebook calculates mid- term or final grades for the students. During the planning week teachers are provided time to set up their Gradebook, and a standardized schedule of when the mid-quarter and quarter grades are to be completed. The teachers are reminded of these deadlines throughout the year. If a teacher fails to enter the mid-quarter or quarter grades by the stated deadline, the system locks the teacher out, and the grades must be handwritten. Additionally, Gradebook is used by Booker (and other schools) to take student attendance. Taking attendance in the first five days of each school year is critical because those attendance numbers are used to determine the appropriate funding for Booker (and other schools in the school system). In order to access Gradebook, each teacher is assigned a confidential “A” number and password. Grades are to be entered by teachers, not paraprofessionals or volunteers. When there are two teachers in a classroom, such as the inclusion room at Booker, the main teacher is responsible for inputting the grades. Each night, information from the Gradebook (the grades posted that day) is uploaded to the SIS. A performance improvement plan (PIP) is basically an action plan to assist an underachieving teacher to succeed. The administrator who supervises the teacher provides coaching and criticism in an effort to improve the teacher’s performance. The CBA provided for progressive discipline. Turning to Article XXV of the CBA, entitled “Disciplinary Actions,” the pertinent parts state: Scope of Article This article covers actions involving oral or written warnings, written reprimand, suspensions, demotions, dismissals, or reductions in grade or pay with prejudice. Disciplinary action may not be taken against a teacher except for just cause, and this must be substantiated by sufficient evidence which supports the recommended disciplinary action. All facts pertaining to a disciplinary action shall be developed as promptly as possible. Actions under this Article shall be promptly initiated after all the facts have been made known to the official responsible for taking the action. * * * A teacher against whom disciplinary action is to be taken may appeal the proposed action through the grievance procedure. A teacher against whom action is to be taken under this Article shall have the right to review all of the information relied upon to support the proposed action and shall be given a copy upon request. The Union shall be provided with a copy of all correspondents that is related to the action of the teacher the Union is representing. The teacher and his/her representative shall be afforded a reasonable amount of time to prepare and present appropriate responses to the proposed actions under this Article, through Step One of the Grievance Process. This amount of time is to be mutually agreed upon by the parties. * * * Previous charges or actions that have been brought forth by the administrative may be cited against the teacher if these previous acts are reasonably related to the existing charge. All previous charges or actions must have been shared with the teacher. The discipline, dismissal, demotion, and suspension of any teacher shall be for just cause. Where just cause warrants such action(s), a teacher may be demoted, suspended, or dismissed upon recommendation of the immediate supervisor to the Superintendent of Schools. Except in cases that constitute a real immediate danger to the district or other flagrant violation, progressive discipline shall be administered as follows: Verbal reprimand. (Written notation placed in site file.) Written reprimand filed in personnel and site files. Suspension with or without pay. Dismissal. * * * K. During the pendency of an investigation into an allegation of wrongdoing on the part of a teacher, the teacher may be temporarily reassigned only if the charges, if proven to be true, could lead to the teacher’s termination or suspension or if the teacher’s conduct poses a threat to any individual’s safety. Booker’s administrators Frost, Dorn, and Jenkins, corroborated the collaborative or triangulation leadership style they utilized at Booker. If one administrator learned of a situation, all three administrators were involved in the investigation and determination of any necessary corrective measures. All three Booker administrators try to coach underperforming teachers through informal counseling or verbal assistance, and memoranda of instructions, both of which are not considered disciplinary actions. In most instances, when a teacher is apprised of a concern, the verbal assistance is sufficient to correct the concern. When the verbal assistance or memoranda of instructions are ineffective, the administrators use progressive discipline. Respondent was verbally counseled at different times by AP Dorn and AP Jenkins of the need to take attendance and/or timely input grades. In October 2012 and February 2014, Respondent received a Memorandum of Instruction from AP Jenkins. The October memo highlighted the need for Respondent to take attendance each day, “within the first fifteen minutes” for each class. The February memo advised Respondent to enter her grades “weekly for parents to access and monitor.” DISCIPLINE AT ISSUE A Memorandum of Understanding (MOU or agreement), dated October 29, 2015, was executed by Respondent, Barry Dubin, executive director of the SC/TA, and Deputy Superintendent Lempe. This MOU resolved three outstanding disciplinary actions (one recommendation for a suspension, and two recommendations for employment termination) against Respondent. The contents of the MOU provided: With regard to the grievance filed on behalf of Ms. Judy Conover a Teacher currently assigned to Booker Middle School, the undersigned parties do hereby agree to the following terms: The Board agrees to withdraw its two termination actions pending against Ms. Conover. Ms. Conover agrees to serve a three (3) day unpaid suspension. Should Ms. Conover fail to execute this Memorandum and elect to challenge the proposed suspension, this suspension will be withdrawn and the matter to be decided by either an arbitrator or DOAH hearing officer will be the matter of all pending discipline including the two pending terminations. Ms. Conover agrees to remain on assistance (PIP) until such time as her teacher Evaluation Score is within the Effective range.[9/] The parties agree that by executing this Memorandum, this brings all matters pertaining to presently proposed disciplinary actions and grievances to a close. Ms. Conover understands that the next step of progressive discipline called for under the terms of the Instructional Bargaining Unit Agreement should there be a further transgression of the rules could be termination of her employment. Prior to her executing the MOU, Respondent returned to Booker for the 2015-2016 school year as a social studies teacher. Principal Frost welcomed her back to school during the teacher’s planning week in mid-August 2015. Principal Frost continued to supervise Respondent’s PIP progress.10/ Shortly after the students returned for 2015-2016 school year, AP Dorn reminded Respondent to take attendance. In mid-September 2015, while conducting a random review of grades, AP Dorn emailed Respondent about the lack of grades for all of her classes, and that her Gradebook had not been set up. In that email, AP Dorn asked Respondent to see him. Respondent did not do so. Just before the mid-quarter grade deadline, Respondent input grades back to August 28, 2015, the end of the first week of classes. Respondent was notified of a Weingarten meeting scheduled for September 30, 2015. Based meeting was rescheduled for and held on November 9, 2015. During the Weingarten meeting, Respondent did not recall receiving or responding to AP Dorn’s email about her grades and gradebook. Respondent acknowledged her understanding of “the need to get in grades” and that the administration had previously spoken with her about entering grades. However, Respondent did not furnish any facts other than non-answers. A second Weingarten meeting was also held on November 9, 2015. The second Weingarten meeting sought information about Respondent sharing her “A” number and password with a paraprofessional who worked with her. Respondent admitted that she gave her “A” number and password to the paraprofessional, who then input grades into Gradebook. Respondent served the agreed three-day suspension in December 2015. On February 22, 2016, Superintendent White issued a certified letter to Respondent. This letter provided that Respondent had been: [I]nsubordinate in performing your assigned duties as they relate to accurately recording and the placing of student grades in the student information system. [W]e have concluded you have committed the following offenses among others: misconduct in office, willful neglect of duties and incompetency. Therefore, . . . I have just cause to terminate your employment with the Sarasota County School Board. This February letter was the result of the two Weingarten hearings that were held on November 9, 2015. On March 8, 2016, the regularly scheduled PLC meeting for the 6th grade social studies teachers was held. Respondent did not attend the meeting. Although Respondent was on campus that day, and initially told the PLC leader that she would be late, she did not attend. Respondent was notified of a Weingarten meeting scheduled for March 24, 2016. This meeting was rescheduled to April 6, 2016, to accommodate Respondent’s request for representation to be present. The meeting was rescheduled again and held on April 12, 2016. The Weingarten meeting was to determine whether Respondent attended the March 8 PLC meeting, her reason(s) for missing the PLC meeting, and what Respondent may have discussed with her PLC members regarding how administration determined Respondent was not at that PLC meeting. Prior to attending the Weingarten meeting, Respondent telephoned her PLC leader, Ms. Scherzer, and asked who had informed the administration of Respondent’s absence from the PLC meeting. Ms. Scherzer sensed that Respondent was upset that the administration knew Respondent had missed the meeting. Respondent’s demeanor was less than cordial toward Ms. Scherzer. Of the 16 questions posed to her during the April 12 Weingarten meeting, Respondent answered three: 1) her current position; 2) her duty day at Booker; and 3) her knowledge that there was a PLC meeting on March 8, 2016. The remaining Weingarten questions provided Respondent with the opportunity to explain her PLC absence, yet she declined to answer the questions, except to say she didn’t feel comfortable answering them without representation. There was no testimony that she advised Booker’s administration at that time, that she was represented by a representative or an attorney. Respondent’s testimony that she was upset that her paraprofessional had been called to the front office, and that no one bothered to question Respondent about her absence from the PLC meeting, is not accurate. Respondent was afforded the opportunity to provide answers and choose not to do so. On April 26, 2016, Superintendent White issued another certified letter to Respondent. This letter provided that Respondent had been: [I]nsubordinate in performing your assigned duties and exercising professional judgement and integrity. [W]e have concluded you have committed the following offenses among others: misconduct in office, willful neglect of duties and incompetency. Therefore, . . . I have just cause to terminate your employment with the Sarasota County School Board. This April letter was the result of the Weingarten hearing that was held on April 12, 2016. Deputy Superintendent Lempe’s job is to run the business operation of Petitioner and he is involved with the grievance process as the “formal level one grievance authority.” He was directly involved with the MOU negotiations, and drafting of the “last chance agreement.” As outlined in the CBA, Petitioner utilizes a four-step progressive discipline structure. One of Deputy Superintendent Lempe’s duties involves the grievance process as the “formal level one grievance authority.” He was directly involved with the MOU negotiations, drafting of the last chance agreement, and referred to this last chance agreement “as step five in our four- step progressive disciplinary [sic] process.” At the hearing, Respondent again acknowledged her understanding of the MOU provision: “that the next step of progressive discipline called for under the terms of the Instructional Bargaining Unit Agreement should there be a further transgression of the rules could be termination of her employment.” RESPONDENT’S PRIOR DISCIPLINARY HISTORY There was ample testimonial and documentary evidence presented regarding Respondent’s disciplinary history. The following is a summary of the evidence regarding Respondent’s disciplinary history: February 24, 2014: Respondent was given a verbal reprimand11/ for her use of disparaging comments and behaviors toward students in her class. Respondent did not grieve this action. April 8, 2014: Respondent was given a written reprimand12/ for an incident that affected Booker’s FTE (full-time employees) survey, which directly related to Booker’s funding for employees, and another colleague’s VAMS (value added model system) score. Respondent inappropriately retained a student in her class when the student had been administratively transferred to and was on another teacher’s rooster. Respondent did not grieve this action. October 29, 2014: Superintendent White notified Respondent that, acting on Principal Frost’s recommendation, Superintendent White would recommend to the school board that Respondent be suspended for three days without pay. Respondent had been insubordinate, used inappropriate language, and had inappropriate interactions with students. December 1, 2014: Principal Frost recommended Respondent’s employment be terminated. Respondent refused to allow a student back in the classroom after the student had completed a suspension period. April 6, 2015: Principal Frost placed Respondent on “administrative leave pending an internal investigation.” A substitute teacher had found Respondent’s handwritten note, which contained derogatory and offensive language regarding certain students in her class(es). Principal Frost had also entered Respondent’s classroom, observed Respondent on the phone, and heard Respondent use obscenities that could be heard by students. Following the Weingarten meeting on this matter, Respondent was reassigned to the Landings, the School Board’s administrative offices, during the course of the investigation. On April 7, 2015, Superintendent White notified Respondent that, acting on Principal Frost’s recommendation, Superintendent White would recommend to the School Board that Respondent’s employment be terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner terminate Respondent's employment as a classroom teacher for Sarasota County School Board. DONE AND ENTERED this 5th day of January, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 5th day of January, 2017.
The Issue The issues in this case are whether Respondent satisfactorily corrected specified performance deficiencies within the 90-day probation period prescribed by Section 1012.34(3)(d), Florida Statutes, and, if not, whether Respondent's employment should be terminated.
Findings Of Fact One of the statutory duties of Petitioner Miami-Dade County School Board ("Board") is to evaluate the performance of every teacher employed in the Miami-Dade County School District ("District"), at least once per year. To accomplish this, the Board uses a personnel assessment system known as "PACES," which is an acronym for Professional Assessment and Comprehensive Evaluation System. PACES is the product of collective bargaining between the Board and the teachers' union, and it has been duly approved by the Florida Department of Education. The Board's evaluation procedure begins with an observation of the subject teacher, conducted by an administrator trained in the use of PACES. On a score sheet called the Observation Form for Annual Evaluation ("OFAE"), the evaluator rates the teacher's performance on 44 independently dispositive "indicators." The only grades assignable to the respective indicators are "acceptable" and "unacceptable"; thus, the evaluator's decision, for each indicator, is binary: yes or no, thumbs up or thumbs down.1 A negative mark on any one of the 44 indicators results in an overall performance evaluation of "unsatisfactory." For the teacher under observation, therefore, each indicator constitutes, in effect, a pass/fail test, with his or her job hanging in the balance. If the teacher passes all 44 of the independently dispositive indicators, then the teacher's performance is rated "satisfactory" and the evaluative process is complete. If, on the other hand, the teacher is given a failing grade on one or more of the 44 indicators and hence adjudged an unsatisfactory performer, then the initial observation is deemed to be "not of record" (i.e. inoperative) and a follow-up, "for the record" evaluation is scheduled to occur, upon notice to the affected teacher, about one month later. In the meantime, the teacher is offered the assistance of a Professional Growth Team ("PGT"), a group of peers who, having received special training in PACES, are in a position to help the affected teacher correct performance deficiencies in advance of the follow-up evaluation. The follow-up evaluation is conducted in the same manner as the initial "not of record" evaluation. If the teacher passes all 44 indicators, then his performance is deemed satisfactory and the evaluative process is complete. If he fails one or more of the indicators, however, then the teacher is placed on probation for a period of 90 calendar days (excluding vacations and holidays). The probation period is preceded by a formal Conference-for-the-Record ("CFR"), at which notice of the specific performance deficiencies is provided to the teacher. As well, the teacher is given a Professional Improvement Plan ("PIP"), wherein particular remedial tasks, intended to help the teacher correct the noted performance deficiencies, are assigned. During the performance probation, the teacher must be formally observed at least twice, by an evaluator using the OFAE. If, on any of these probationary observations, the teacher fails at least one indicator, then another PIP is prepared and offered. Within 14 days after the end of probation, a "confirmatory evaluation" is conducted, using the OFAE. The purpose of the confirmatory evaluation is to determine whether the noted performance deficiencies were corrected. If they were, then the teacher's performance is rated "satisfactory." If not, the principal then makes a recommendation to the superintendent whether to continue or terminate the teacher's employment. As mentioned above, a PACES evaluation takes account of 44 crucial indicators.2 The indicators are organized under "components." The 44 outcome determinative indicators fall within 21 components, which are identified on the OFAE. These components are organized, in turn, under "domains," of which six are identified on the OFAE. Each domain has been assigned a Roman numeral identifier: I through VI. The components are distinguished alphabetically: A, B, C, etc. The indicators are numbered using Arabic numerals. Each specific indicator is named according to the Roman numeral of its domain, the letter of its component, and its own Arabic number. Thus, for example, the first indicator under Component A of Domain I is referred to as "I.A.1." Notwithstanding the PACES taxonomy, the classifications of "domain" and "component" are useful only as a means of organizing the indicators. This is because a teacher does not pass or fail a performance evaluation at the domain level or at the component level; rather, he passes or fails at the indicator level, for, again, each of the 44 indicators is independently dispositive under PACES.3 Thus, each of the determinative 44 indicators is of precisely equal weight. None is more important or less important than another.4 B. At all times material to this case, Respondent Sergio H. Escalona ("Escalona") was a teacher in the District. From 2000 until May 19, 2004, when the Board suspended him pending termination of employment, Escalona was a science teacher at Miami Springs Senior High School ("Miami Springs"), a typical high school in the District. During the 2003-04 school year, an evaluator observed Escalona in his classroom on five separate occasions, each time using the OFAE. The dates of these evaluations were, and the names of the respective evaluators are, as follows: Evaluation Date Evaluator November 5, 2003 Carlos M. del Cuadro, Assistant Principal, Miami Springs December 2, 2003 Mr. del Cuadro January 16, 2004 Douglas P. Rodriguez, Principal, Miami Springs February 17, 2004 Deborah Carter, Assistant Principal, Miami Springs April 5, 2004 Mr. Rodriguez The Board contends that Escalona failed all five evaluations; the first, however, was deemed "not of record" and thus is relevant only insofar as it opened the door to the process that followed. The following table shows, for each evaluation (including the first), the indicators that the respective evaluators thought Escalona had failed: IA1 IA2 IB1 IB3 IE3 IF1 IF2 IIA1 IIA3 IIB2 IIB4 11-05-03 x x x x x x x 12-02-03 x 01-16-04 x x x 02-17-04 x x x x 04-05-04 x x x IID1 IID3 IID4 IIE1 IIE2 IIE5 IIIA1 IIIA3 IIIB1 IIIB3 IIIB4 11-05-03 x x x x x x 12-02-03 x x 01-16-04 x x 02-17-04 x 04-05-04 x x x x x IVA3 IVA 5 IVA6 IVB1 IVB2 IVB 3 IVC2 IVD1 IVD3 IVD6 IVE2 11-05-03 x x x x x x x x x 12-02-03 x x x 01-16-04 x x x x x x 02-17-04 x x x x x 04-05-04 x ? x ? x ? x x IVE4 VA1 VA4 VB1 VB2 VC1 VIA2 VIB1 VIB3 VIC2 VIC4 11-05-03 x x x x x x x x 12-02-03 x x x x 01-16-04 x x x x x x x 02-17-04 04-05-04 x ? ? ? x ? x x Because Mr. del Cuadro identified 10 performance deficiencies on December 2, 2003, Escalona was placed on performance probation, pursuant to the procedure described in detail above. Mr. Rodriguez held a CFR on December 9, 2004, to review with Escalona the identified deficiencies and explain the procedures relating to the 90-day probation. Following the CFR, Escalona was given written notice of unsatisfactory performance, in the form of a Summary of Conference-For-The-Record And Professional Improvement Plan (PIP), dated December 9, 2003 ("Summary"). In the Summary, Mr. Rodriguez charged Escalona with failure to satisfactorily perform the following PACES indicators: II.B.4, II.E.5, III.B.3, IV.A.5, IV.B.1, IV.D.1, V.A.1, V.A.4, V.B.1, and VI.A.2. (These 10 indicators are highlighted vertically in the table above.) At the same time, Escalona was given a PIP, and a PGT was assembled to provide assistance. Following the confirmatory evaluation on April 5, 2004, based on which Mr. Rodriguez identified 24 deficiencies as shown in the table above, Mr. Rodriguez notified the superintendent that Escalona had failed to correct noted performance deficiencies during a 90-day probation and recommended that Escalona's employment be terminated. The superintendent accepted Mr. Rodriguez's recommendation on April 12, 2004, and shortly thereafter notified Escalona of his decision to recommend that the Board terminate Escalona's employment contract. On May 19, 2004, the Board voted to do just that. C. Of the four evaluations "for the record," the two that were conducted during Escalona's probation (on January 16, 2004, and February 17, 2004) are presently relevant mainly to establish that the proper procedure was followed——a matter that is not genuinely disputed. The substance of these probationary evaluations cannot affect the outcome here because even if Escalona's performance had been perfect during probation, Mr. Rodriguez nevertheless found deficiencies during the post- probation, confirmatory evaluation, which is the only one probative of the dispositive question: Had Escalona corrected the noted performance deficiencies as of the two-week period after the close of the 90 calendar days' probation? In view of the ultimate issue, the evaluation of December 2, 2003, is primarily relevant because it established the 10 "noted performance deficiencies" that Escalona needed to correct. For reasons that will be discussed below in the Conclusions of Law, the Board cannot terminate Escalona's employment based on other deficiencies allegedly found during probation or at the confirmatory evaluation; rather, it must focus exclusively on those 10 particular deficiencies which Escalona was given 90 calendar days to correct. Thus, stated more precisely, the ultimate question in this case is whether any of the 10 specific deficiencies identified in the Summary provided to Escalona on December 9, 2003, persisted after the 90-day probation. As it happened, Mr. Rodriguez determined, as a result of the confirmatory evaluation on April 5, 2004, that Escalona had corrected three of the 10 noted performance deficiencies, for Mr. Rodriguez gave Escalona a passing grade on the indicators II.B.4, II.E.5, and III.B.3. The remaining seven deficiencies upon which termination could legally be based are identified in the table above with the "?" symbol. It is to these seven allegedly uncorrected deficiencies that our attention now must turn. The Board contends, based on Mr. Rodriguez's confirmatory evaluation of April 5, 2004, that Escalona was still, as of that date, failing satisfactorily to perform the following PACES indicators: 5: The purpose or importance of learning tasks is clear to learners. 1: Teaching and learning activities are appropriate for the complexity of the learning context. IV.D.1: Learners have opportunities to learn at more than one cognitive and/or performance level or to integrate knowledge and understandings. V.A.1: Learners are actively engaged and/or involved in developing associations. 4: Learners are actively engaged and/or involved and encouraged to generate and think about examples from their own experiences. 1: A variety of questions that enable thinking are asked and/or solicited. VI.A.2: Learner engagement and/or involvement during learning tasks is monitored. The only descriptive evidence in the record regarding Escalona's performance on April 5, 2004——and hence the only evidence of historical fact upon which the undersigned can decide whether Escalona failed adequately to perform the seven indicators just mentioned——consists of Mr. Rodriguez's testimony. Mr. Rodriguez, who had observed Escalona in the classroom for 50 minutes that day, recounted at final hearing what he had seen as follows: Again, there were students that were simply not engaged at all in learning. For example, there was a student that put his head down at a particular time. He slept for about fifteen minutes. Mr. Escalona never addressed the student, never redirected the learning, never tried to engage that student. Overall the students continued to pass notes in class. The students simply——there was really no plan at all. That was get up, give a lecture. Kids were not paying attention. No redirection for student learning. Questions again very basic. Most of the questions had no response from the students. And [they] just seemed very disinterested, the students did, and the lesson was just not acceptable. Final Hearing Transcript at 103-04. To repeat for emphasis, any findings of historical fact concerning Escalona's performance during the confirmatory evaluation must be based on the foregoing testimony, for that is all the evidence there is on the subject.5 Mr. Rodriguez did not explain how he had applied the seven indicators quoted above to his classroom observations of Escalona to determine that the teacher's performance was not up to standards. D. The seven indicators at issue in this case, it will be seen upon close examination, are not standards upon which to base a judgment, but rather factual conditions ("indicator- conditions") for which the evaluator is supposed to look. If a particular indicator-condition (e.g. the purpose of learning tasks is clear to learners) is found to exist, then the evaluator should award the teacher a passing grade of "acceptable" for that indicator (in this example, Indicator IV.A.5); if not, the grade should be "unacceptable." The indicator-conditions are plainly not objective historical facts; they are, rather, subjective facts, which come into being only when the evaluator puts historical facts against external standards, using reason and logic to make qualitative judgments about what occurred. Subjective facts of this nature are sometimes called "ultimate" facts, the answers to "mixed questions" of law and fact. To illustrate this point, imagine that the class Mr. Rodriguez observed on April 5, 2004, had been videotaped from several different camera angles. The resulting tapes would constitute an accurate audio-visual record of what transpired in Escalona's class that day. Anyone later viewing the tapes would be able to make detailed and accurate findings of objective historical fact, including words spoken, actions taken, time spent on particular tasks, etc. But, without more than the videotapes themselves could provide, a viewer would be unable fairly to determine whether, for example, the "[t]eaching and learning activities [had been] appropriate for the complexity of the learning context" (Indicator IV.B.1), or whether the questions asked adequately "enable[d] thinking" (Indicator V.B.1).6 This is because to make such determinations fairly, consistently, and in accordance with the rule of law requires the use of standards of decision, yardsticks against which to measure the perceptible reality captured on film. Another term for standards of decision is "neutral principles." A neutral principle prescribes normative conduct in a way that permits fair judgments to be made consistently—— that is, in this context, enables the reaching of similar results with respect to similarly performing teachers most of the time. A neutral principle must not be either political or results oriented. It must be capable of being applied across- the-board, to all teachers in all evaluations. In the unique milieu of PACES, neutral principles could take a variety of forms. One obvious form would be standards of teacher conduct. Such standards might be defined, for example, with reference to the average competent teacher in the District (or school, or state, etc.). In an adjudicative proceeding such as this one, expert testimony might then be necessary to establish what the average competent teacher does, for example, to monitor learner engagement and/or involvement during learning tasks (Indicator VI.A.2) or to create opportunities to learn at more than one cognitive level (Indicator IV.D.1).7 Other standards might be definitional. For example, to determine whether teaching and learning activities are appropriate (Indicator IV.B.1) practically demands a definition of the term "appropriate" for this context. Still other standards might be framed as tests, e.g. a test for determining whether a question enables thinking (Indicator V.B.1). However the neutral principles are framed, at bottom there must be standards that describe what "satisfactory" performance of the indicators looks like, so that different people can agree, most of the time, that the indicator- conditions are present or absent in a given situation——and in other, similar situations. Without neutral principles to discipline the decision-maker, the indicators can be used as cover for almost any conclusion an evaluator (or Administrative Law Judge) might want to make. In this case, the record is devoid of any persuasive evidence of neutral principles for use in determining, as a matter of ultimate fact, whether the conditions described in the seven relevant indicators were extant in Escalona's classroom on April 5, 2004, or not. E. In this de novo proceeding, the undersigned fact- finder is charged with the responsibility of determining independently, as a matter of ultimate fact, whether, as of the two-week period following probation, Escalona had corrected all of the performance deficiencies of which he was notified at the outset of probation. The only evidence of Escalona's post- probation teaching performance consists of Mr. Rogriguez's testimony about his observation of Escalona for 50 minutes on April 5, 2004, which was quoted above. Mr. Rodriguez's testimony gives the undersigned little to work with. His observations can be boiled down to four major points, none of which flatters Escalona: (a) Escalona lectured, and the students, who seemed disinterested, did not pay attention——some even passed notes; (b) Escalona asked "very basic" questions, most of which elicited "no response"; (c) one student slept for 15 minutes, and Escalona left him alone; (d) the lesson was "just not acceptable." On inspection, these points are much less helpful than they might at first blush appear. One of them——point (d)——is merely a conclusion which invades the undersigned's province as the fact-finder; accordingly, it has been given practically no weight. The only facts offered in support of the conclusions, in point (a), that the students "seemed" disinterested and were "not paying attention" to Escalona's lecture is the testimony that some students passed notes, and some (many?) did not answer the teacher's questions. But this is a rather thin foundation upon which to rest a conclusion that the students were bored because Escalona's teaching was poor. And even if they were (or looked) bored, is it not fairly common for teenaged high-school students to be (or appear) bored in school, for reasons unrelated to the teacher's performance? There is no evidence whatsoever that student boredom (or note passing or non- responsiveness) features only in the classrooms of poorly performing teachers. As for the supposedly "basic" nature of Escalona's questions, see point (b), the undersigned cannot give Mr. Rodriguez's testimony much weight, because there is no evidence as to what the questions actually were or why they were so very basic. Finally, regarding point (c), the fact that a student slept during class is, to be sure, somewhat damaging to Escalona, inasmuch as students should not generally be napping in class, but without additional information about the student (who might have been sick, for all the undersigned knows) and the surrounding circumstances the undersigned is not persuaded that the sleeping student is res ipsa loquitur on the quality of of Escalona's teaching performance. There is certainly no evidence that students doze only in the bad teachers' classes. More important, however, than the paucity of evidence establishing the objective historical facts concerning Escalona's performance on April 5, 2004, is the failure of proof regarding neutral principles for use in determining the existence or nonexistence of the relevant indicator-conditions. Even if the undersigned had a clear picture of what actually occurred in Escalona's classroom that day, which he lacks, he has been provided no standards against which to measure Escalona's performance, to determine whether the indicator- conditions were met or not. The absence of evidence of such standards is fatal to the Board's case. To make ultimate factual determinations without proof of neutral principles, the undersigned would need to apply standards of his own devising. Whatever merit such standards might have, they would not be the standards used to judge other teachers, and hence it would be unfair to apply them to Escalona.
Conclusions The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569, 120.57(1), and 1012.34(3)(d)2.b.(II), Florida Statutes. When a teacher contests a superintendent's recommendation of dismissal, as here, the ensuing hearing must be conducted "in accordance with chapter 120." See § 1012.34(3)(d)2.b.(II), Fla. Stat. A "chapter 120 proceeding [entails] a hearing de novo intended to 'formulate final agency action, not to review action taken earlier and preliminarily.'" Young v. Department of Community Affairs, 625 So. 2d 831, 833 (Fla. 1993)(quoting McDonald v. Department of Banking & Fin., 346 So. 2d 569, 584 (Fla. 1st DCA 1977)). Thus, the Board's burden in this case was not merely to persuade the undersigned that the evaluators sincerely believed, after conducting a legally sufficient assessment, that Young's performance was deficient, nor even to persuade the undersigned that the evaluators' judgment was factually and legally tenable. Rather, the Board's burden was to persuade the undersigned himself to find, independently, that Young's performance was deficient. Because this case is a proceeding to terminate a teacher's employment and does not involve the loss of a license or certification, the Board was required to prove the alleged grounds for Escalona's dismissal by a preponderance of the evidence. McNeill v. Pinellas County School Bd., 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. School Bd. of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Bd. of Lake County, 569 So. 2d 883 (Fla. 3d DCA 1990). B. Section 1012.34, Florida Statutes, which governs the process for evaluating teachers, provides in full as follows: 1012.34 Assessment procedures and criteria.-- For the purpose of improving the quality of instructional, administrative, and supervisory services in the public schools of the state, the district school superintendent shall establish procedures for assessing the performance of duties and responsibilities of all instructional, administrative, and supervisory personnel employed by the school district. The Department of Education must approve each district's instructional personnel assessment system. The following conditions must be considered in the design of the district's instructional personnel assessment system: The system must be designed to support district and school level improvement plans. The system must provide appropriate instruments, procedures, and criteria for continuous quality improvement of the professional skills of instructional personnel. The system must include a mechanism to give parents an opportunity to provide input into employee performance assessments when appropriate. In addition to addressing generic teaching competencies, districts must determine those teaching fields for which special procedures and criteria will be developed. Each district school board may establish a peer assistance process. The plan may provide a mechanism for assistance of persons who are placed on performance probation as well as offer assistance to other employees who request it. The district school board shall provide training programs that are based upon guidelines provided by the Department of Education to ensure that all individuals with evaluation responsibilities understand the proper use of the assessment criteria and procedures. The assessment procedure for instructional personnel and school administrators must be primarily based on the performance of students assigned to their classrooms or schools, as appropriate. Pursuant to this section, a school district's performance assessment is not limited to basing unsatisfactory performance of instructional personnel and school administrators upon student performance, but may include other criteria approved to assess instructional personnel and school administrators' performance, or any combination of student performance and other approved criteria. The procedures must comply with, but are not limited to, the following requirements: An assessment must be conducted for each employee at least once a year. The assessment must be based upon sound educational principles and contemporary research in effective educational practices. The assessment must primarily use data and indicators of improvement in student performance assessed annually as specified in s. 1008.22 and may consider results of peer reviews in evaluating the employee's performance. Student performance must be measured by state assessments required under s. 1008.22 and by local assessments for subjects and grade levels not measured by the state assessment program. The assessment criteria must include, but are not limited to, indicators that relate to the following: Performance of students. Ability to maintain appropriate discipline. Knowledge of subject matter. The district school board shall make special provisions for evaluating teachers who are assigned to teach out-of-field. Ability to plan and deliver instruction, including implementation of the rigorous reading requirement pursuant to s. 1003.415, when applicable, and the use of technology in the classroom. Ability to evaluate instructional needs. Ability to establish and maintain a positive collaborative relationship with students' families to increase student achievement. Other professional competencies, responsibilities, and requirements as established by rules of the State Board of Education and policies of the district school board. All personnel must be fully informed of the criteria and procedures associated with the assessment process before the assessment takes place. The individual responsible for supervising the employee must assess the employee's performance. The evaluator must submit a written report of the assessment to the district school superintendent for the purpose of reviewing the employee's contract. The evaluator must submit the written report to the employee no later than 10 days after the assessment takes place. The evaluator must discuss the written report of assessment with the employee. The employee shall have the right to initiate a written response to the assessment, and the response shall become a permanent attachment to his or her personnel file. If an employee is not performing his or her duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination. The notice must describe such unsatisfactory performance and include notice of the following procedural requirements: 1. Upon delivery of a notice of unsatisfactory performance, the evaluator must confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and provide assistance in helping to correct deficiencies within a prescribed period of time. 2.a. If the employee holds a professional service contract as provided in s. 1012.33, the employee shall be placed on performance probation and governed by the provisions of this section for 90 calendar days following the receipt of the notice of unsatisfactory performance to demonstrate corrective action. School holidays and school vacation periods are not counted when calculating the 90-calendar-day period. During the 90 calendar days, the employee who holds a professional service contract must be evaluated periodically and apprised of progress achieved and must be provided assistance and inservice training opportunities to help correct the noted performance deficiencies. At any time during the 90 calendar days, the employee who holds a professional service contract may request a transfer to another appropriate position with a different supervising administrator; however, a transfer does not extend the period for correcting performance deficiencies. b. Within 14 days after the close of the 90 calendar days, the evaluator must assess whether the performance deficiencies have been corrected and forward a recommendation to the district school superintendent. Within 14 days after receiving the evaluator's recommendation, the district school superintendent must notify the employee who holds a professional service contract in writing whether the performance deficiencies have been satisfactorily corrected and whether the district school superintendent will recommend that the district school board continue or terminate his or her employment contract. If the employee wishes to contest the district school superintendent's recommendation, the employee must, within 15 days after receipt of the district school superintendent's recommendation, submit a written request for a hearing. The hearing shall be conducted at the district school board's election in accordance with one of the following procedures: A direct hearing conducted by the district school board within 60 days after receipt of the written appeal. The hearing shall be conducted in accordance with the provisions of ss. 120.569 and 120.57. A majority vote of the membership of the district school board shall be required to sustain the district school superintendent's recommendation. The determination of the district school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment; or A hearing conducted by an administrative law judge assigned by the Division of Administrative Hearings of the Department of Management Services. The hearing shall be conducted within 60 days after receipt of the written appeal in accordance with chapter 120. The recommendation of the administrative law judge shall be made to the district school board. A majority vote of the membership of the district school board shall be required to sustain or change the administrative law judge's recommendation. The determination of the district school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment. The district school superintendent shall notify the department of any instructional personnel who receive two consecutive unsatisfactory evaluations and who have been given written notice by the district that their employment is being terminated or is not being renewed or that the district school board intends to terminate, or not renew, their employment. The department shall conduct an investigation to determine whether action shall be taken against the certificateholder pursuant to s. 1012.795(1)(b). The district school superintendent shall develop a mechanism for evaluating the effective use of assessment criteria and evaluation procedures by administrators who are assigned responsibility for evaluating the performance of instructional personnel. The use of the assessment and evaluation procedures shall be considered as part of the annual assessment of the administrator's performance. The system must include a mechanism to give parents and teachers an opportunity to provide input into the administrator's performance assessment, when appropriate. Nothing in this section shall be construed to grant a probationary employee a right to continued employment beyond the term of his or her contract. The district school board shall establish a procedure annually reviewing instructional personnel assessment systems to determine compliance with this section. All substantial revisions to an approved system must be reviewed and approved by the district school board before being used to assess instructional personnel. Upon request by a school district, the department shall provide assistance in developing, improving, or reviewing an assessment system. The State Board of Education shall adopt rules pursuant to ss. 120.536(1) and 120.54, that establish uniform guidelines for the submission, review, and approval of district procedures for the annual assessment of instructional personnel and that include criteria for evaluating professional performance. (Underlining and italics added). Under Section 1012.34(3), school districts must establish a primarily student performance-based procedure (or system) for assessing the performance of teachers. In other words, the method of accomplishing the assessment must be tailored to meet the goal of forming evaluative judgments about teachers' performance based mainly on the performance of their students. In clear terms, then, the legislature has announced that the primary (though not exclusive)8 indicator of whether a teacher is doing a good job is the performance of his students. If a teacher's students are succeeding, then, whatever he is doing, the teacher is likely (though not necessarily) performing his duties satisfactorily. It is plainly the legislature's belief that if we do not know how the teacher's students are performing, then we cannot make a valid judgment as to whether the teacher is performing his duties satisfactorily.9 The statute further mandates that, in assessing teachers, indicators of student performance——which performance is assessed annually as specified in Section 1008.22——must be the primarily-used data. (In contrast, evaluators are permitted, but not required, to make use of peer reviews in assessing teacher performance.) Section 1008.22, which is referenced specifically in Section 1012.34(3)(a), requires that school districts participate in a statewide assessment program, the centerpiece of which is the Florida Comprehensive Assessment Test ("FCAT"). See § 1008.22(3), Fla. Stat. The FCAT is a standardized test that is administered annually to students in grades three through 10. Id. Section 1008.22 is not concerned only with the FCAT, however. Subsection (7), for example, provides as follows: (7) LOCAL ASSESSMENTS.--Measurement of the learning gains of students in all subjects and grade levels other than subjects and grade levels required for the state student achievement testing program is the responsibility of the school districts. Thus, the school districts are charged with developing their own local assessment tools, to fill in the gaps left open by the statewide FCAT testing program. Section 1008.22(5) provides additionally that "[s]tudent performance data shall be used in . . . evaluation of instructional personnel[.]" Section 1012.34(3)(a) prescribes two and only two permissible measures of student performance for use in evaluating teachers: (a) the statewide FCAT assessments and (b) the gap-filling local assessments, both of which measures are required under Section 1008.22. It is clear that Sections 1012.34(3) and 1008.22 have at least one subject in common, namely, student performance-based assessment of teachers. Being in pari materia in this regard, Sections 1012.34 and 1008.22 must be construed so as to further the common goal. See, e.g., Mehl v. State, 632 So. 2d 593, 595 (Fla. 1993)(separate statutory provisions that are in pari materia should be construed to express a unified legislative purpose); Lincoln v. Florida Parole Com'n, 643 So. 2d 668, 671 (Fla. 1st DCA 1994)(statutes on same subject and having same general purpose should be construed in pari materia). When the requirements of Section 1012.34(3) are read together with Section 1008.22, several conclusions are inescapable. First, FCAT scores must be the primary source of information used in evaluating any teacher who teaches an FCAT- covered subject to students in grades three through 10. Second, school districts must develop, and annually administer, local assessments for subjects and grade levels not measured by the FCAT. Third, student performance data derived from local assessments must be the primary source of information used in evaluating teachers whose subjects are not covered on the FCAT and/or whose students do not take the FCAT. The absence of evidence in the record concerning the performance of Escalona's students either on the FCAT or on local assessments, as appropriate, see endnote 5, supra, deprives the undersigned of information that the legislature has deemed essential to the evaluation of a teacher's performance. Having neither state nor local assessments to review, the undersigned cannot find that Escalona's performance was deficient in the first place, much less whether he corrected the alleged performance deficiencies in accordance with Section 1012.34(3)(d). Without such findings, the Board cannot dismiss Escalona for failure to correct noted performance deficiencies. C. It was stated in the Findings of Fact above that the Board can terminate Escalona's employment only if, based on an assessment of his performance as of the two-week period following the 90 calendar days of probation, the teacher had failed to correct the particular performance deficiencies of which he had been formally notified in writing prior to probation; other alleged deficiencies, whether observed during probation or thereafter, cannot be relied upon in support of a decision to dismiss Escalona. Standing behind this observation is Section 1012.34(3)(d), Florida Statutes. The pertinent statutory language instructs that a teacher whose performance has been deemed unsatisfactory must be provided a written "notice of unsatisfactory performance," which notice shall include a description of "such unsatisfactory performance" plus recommendations for improvement in the "specific areas of unsatisfactory performance." The statute then specifies that the teacher must be allowed 90 calendar days "following the receipt of the notice of unsatisfactory performance" to correct "the noted performance deficiencies." Clearly, the "noted performance deficiencies" are the specific areas of unsatisfactory performance described in the notice of unsatisfactory performance. Finally, the statute mandates that the teacher shall be assessed within two weeks after the end of probation to determine whether "the performance deficiencies" have been corrected. It is clear, again, that "the performance deficiencies" are "the noted performance deficiencies" described in the written notice of unsatisfactory performance. See § 1012.34(3)(d)1. & 2.a., Fla. Stat. (emphasis added). The reason why a decision to terminate a poorly performing teacher must be based solely on the specific performance deficiencies described in the pre-probation notice of unsatisfactory performance is plain: allowing the school district to rely on subsequently observed deficiencies would defeat the teacher's unambiguous statutory right to have 90 post-notice calendar days in which to correct the noted performance deficiencies that triggered probation in the first place. This case exemplifies the problem posed by post-notice deficiencies. The notice of unsatisfactory performance (the Summary) that gave rise to Escalona's probation, which was based on Mr. del Cuadro's evaluation of December 2, 2003, charged the teacher with 10 specific performance deficiencies. By February 17, 2004, when Ms. Carter formally observed Escalona for the last time before the end of probation, Escalona had corrected all but one (Indicator IV.A.5) of the noted performance deficiencies——suggesting that he had made significant improvement. Unfortunately for Escalona, however, Ms. Carter believed that the teacher had exhibited nine deficiencies besides the noted performance deficiencies, with the net result that, near the end of probation, Escalona still had 10 deficiencies. Of these nine post-notice deficiencies, four (Indicators I.F.1, I.F.2, II.A.1, and IV.B.3) were recorded for the first time ever on February 17, 2004. Obviously, Escalona was not given 90 days to correct these four alleged deficiencies. Yet another three of the post-notice deficiencies reported by Ms. Carter (Indicators I.A.1, IV.A.6, and IV.B.2) had not been seen since Mr. Cuadro's initial evaluation of November 5, 2003. This initial evaluation, being "not of record," cannot count as a notice of unsatisfactory performance to Escalona. Hence he was not given 90 days to correct these three alleged deficiencies. For that matter, the remaining two post-notice deficiencies alleged to exist on February 17, 2004—— Indicators II.D.4 and IV.A.3——had not been observed, post- notice, until January 16, 2004, which means that Escalona did not have 90 days to correct them, either. For the above reasons, when assessing whether, in fact, Escalona had corrected the noted performance deficiencies as of the two-week period following probation, the undersigned focused, as he was required to do, exclusively on the 10 deficiencies described in the Summary, seven of which were alleged not to have been timely corrected. Having determined as a matter of fact that the evidence was insufficient to prove these seven alleged deficiencies existed or persisted, it must be concluded that the Board has failed to carry its burden of establishing the alleged factual grounds for dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating Escalona of all charges brought against him in this proceeding; (b) providing that Escalona be immediately reinstated to the position from which he was suspended; and (c) awarding Escalona back salary, plus benefits, to the extent these accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 23rd day of November, 2004, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 2004.
The Issue The issue presented is whether Respondent's termination of employment by the School Board of Miami-Dade County, Florida, was proper.
Findings Of Fact Respondent was employed as a teacher at Charles R. Drew Middle School, pursuant to an annual contract and holds Florida Educators Certificate Number 188727. Respondent holds a bachelor of science degree from Florida Atlantic University. She was employed by Petitioner in 1997 and has worked in the teaching profession for approximately 30 years. Prior to 1997, Respondent was a substitute teacher in Broward County, Florida, and in other states. During the 1999- 2000 school year, Respondent taught eighth grade science. Teachers employed by the School Board are evaluated pursuant to the Teacher Assessment and Development System ("TADS"). TADS was approved by the Florida Department of Education and is incorporated into the labor contract between the School Board and UTD. The identical TADS evaluations are used for all grade levels, subject areas, and teachers, whether new or veterans. TADS objectively measures 68 minimal behaviors necessary for teaching. At all times material hereto, TADS was used to evaluate Respondent's performance. TADS includes the following factors in its assessment criteria: preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships and assessment techniques. All teachers are contractually required to be informed of the criteria and procedures. At the beginning of each school year, school principals are required to review the assessment criteria with all faculty. TADS observations and ratings are performed by school principals and assistant principals who are trained and certified. The TADS training encompasses four days and includes the following components: strategies for pre-observation, classroom observation, decision-making with the Classroom Assessment Instrument, post-observation interview, prescription/probation of professionals, recommendations for improvement (prescriptive activities), assisting teachers in the design of instruction and improvement activities, practical activities such as video assessment, and actual classroom teacher assessment under the supervision of a trainer. The trained observer is responsible for recording any deficiencies identified during the observation period and providing a prescription plan for performance improvement. Within five work days, a post-observation conference is held with the teacher to discuss the prescription. The teacher has the right to provide a written response, either in the space provided in column 3 of the "Prescription for Performance Improvement" or by separate document that becomes part of the teacher's file. The teacher is required to comply with the activities provided in the prescription plan, which are usually obtained from the "Prescription Manual," and to meet the deadlines set forth in the column designated "Timeline" in the prescription performance improvement plan. As a result of the statutory amendments to Section 231.29, Florida Statutes, the School Board and UTD executed a Memorandum of Understanding on December 4, 1997, for the purpose of amending the TADS procedures to comply with the new statutory requirements. Under the amended procedures, a "conference for the record" initiates a 90 calendar-day performance probation period. Each observation is independent, and there must be periodic observations during the performance probation period in which the employee is apprised of his or her progress and is provided assistance through prescription plans. After the performance probation period is concluded, a "confirmatory observation" occurs without a prescription plan. On November 8, 1999, Respondent was formally observed by Assistant Principal Paulette Covin during science class. Respondent received an unsatisfactory rating in Category III, Classroom Management; Category IV; Techniques of Instruction; and Category V, Teacher-Student Relationships. Respondent was rated unsatisfactory in classroom management because she did not effectively use verbal or non- verbal techniques to redirect off-task learners. Several students continuously misbehaved and violated classroom rules. Four students were engaged in drawing during the lesson. One student slept throughout the entire observation which lasted over one hour. Six students talked throughout the observation period. Several students left their seats without permission and walked around the classroom during the observation period. Respondent did not use techniques effectively to maintain the attention of off-task learners. Clear expectations of student behavior and a systematic approach to proper classroom discipline were not evident. Respondent blew a whistle in an attempt to redirect off-task behavior, but there was no connection between the whistle-blowing and the expected behavior. The students did not react at the use of the whistle. Classroom rules were referred to; however, disruptive students were not dealt with quickly and appropriately. Respondent was rated unsatisfactory in techniques of instruction because Respondent failed to provide background information explaining why the topic of waves was being discussed. Respondent asked students if they remembered what they had learned about waves and electromagnetic spectrum. A student responded, "You did not teach us that." Moreover, lesson components were not properly sequenced. Without any segue or introduction from one activity to another, Respondent told the students to engage in jump-in reading and later, buddy reading. Respondent did not provide students with examples of demonstrations for the lesson she was teaching. Respondent did not provide students with feedback. Respondent was rated unsatisfactory in teacher-student relationships because Respondent did not promote a positive interpersonal environment in her classroom. She did not encourage her students who had difficulty responding. She demonstrated a lack of empathy and understanding for students who responded poorly during the observation, and did not solicit involvement from students who appeared reluctant to participate. She failed to take corrective action when one student gave a response and another student yelled out, "Dummy that's not right." During the post-observation conference for the record held on November 15, 1999, Respondent was advised that her performance was unacceptable, and effective immediately, was being placed on a 90 calendar-day performance probation period. She was informed that, at the end of her probation period, it was her responsibility to demonstrate that she had corrected the identified deficiencies. On November 17, 1999, Respondent received a prescription for performance improvement. Assistant Principal Covin made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies. The plan included observing a lesson taught by a fellow teacher and submitting a summary of the verbal and non- verbal discipline techniques used by that teacher to redirect off-task learners. Respondent was directed to create a classroom management plan for implementing techniques to redirect off-task learners, chart implementation for one week, and then discuss the results with Assistant Principal Covin. In addition, Respondent was directed to review reading strategies learned during in-service training sessions and submit a paper describing ways in which Respondent could provide instruction accommodations for more than one learning style. Additional resources, including administrators and fellow teachers, were also made available to Respondent. Respondent submitted her completed prescription activities before the December 3, 1999, deadline. On December 13, 1999, Respondent was formally observed in her science class by Assistant Principal Andy Granados as a subsequent evaluation to apprise Respondent of her progress. Respondent was found unsatisfactory in Category I, Preparation and Planning; Category III; Classroom Management; and Category IV, Techniques of Instruction. Respondent was rated unsatisfactory in preparation and planning because she had failed to develop written lesson plans, as required. Instead, Respondent advised Assistant Principal Granados that "the lesson plans were in her head." Respondent was rated unsatisfactory in classroom management because she was unaware that several students were engaged in off-task behavior. Three students left their seats without permission and went to other students' desks to talk casually. One student sat in his chair but did not attempt to complete any work. Seven students held private conversations and Respondent made no attempt to redirect them. Throughout the observation period, students walked aimlessly, sharpened pencils, visited with other students, and disturbed the class. Respondent failed to address their behavior. Although Respondent blew a whistle, there was no connection between the whistle blowing and any expected behavior. Respondent's use of verbal and non-verbal techniques to redirect the off-task behavior was completely ineffective. Respondent was rated unsatisfactory in techniques of instruction because she failed to provide any background for the lesson at hand. The lesson began without introduction and the activities in the class were unrelated. Respondent distributed two worksheets. The first worksheet involved an exercise comparing energy and the second was an isolated word game. She did not provide the students with any explanation about either sheet. Students repeatedly asked, "Why are we doing this?" Assistant Principal Granados held a post-observation conference with Respondent on January 10, 2000, to discuss his findings. Although the observation took place on Monday, December 13, 1999, Respondent, admittedly, was absent on December 14 and 15, 1999, and again on January 3-7, 2000. Furthermore, the holiday break extended from December 18, 1999, to January 2, 2000. Notwithstanding Respondent's testimony that she was present on two workdays, December 16 an 17, between the date of the observation and the post-observation conference held January 10, 2000, Petitioner complied with the five-work day time requirement for the post-observation conference. During their post-observation conference, Assistant Principal Granados made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies. The directions included writing and submitting daily lesson plans containing objectives, activities, procedures, assessments, and homework. Respondent was directed to observe a fellow teacher and identify instances where non-verbal techniques were used to maintain the attention of the students. She was also directed to prepare a plan for student behavior with rewards and consequences, to read specific pages for the TADS Prescription Manual, and to complete certain activities in that manual. Additionally, Respondent was directed to create a written outline with an introduction to each lesson indicating the relationship between the written instructional objectives, and the planned activities. The written outline was required to be attached to Respondent's lesson plans. Respondent's prescription plan activities were due on January 28, 2000. Respondent requested and received an extension of time to complete the activities until January 31, 2000, and completed the assigned activities on time. On February 8, 2000, Respondent was formally observed again in her science class by Assistant Principal Edward Bethel. Respondent was rated unsatisfactory in Category III, Classroom Management, and Category IV, Techniques of Instruction. Respondent was rated unsatisfactory in classroom management because there was no clear expectations for acceptable behavior. Students were engaged in off-task behavior. Four students left their seats without permission, while six students chewed gum and talked throughout the lesson. Respondent blew a whistle but the students continued to talk. Students who interacted inappropriately or interfered with the work of others were not disciplined appropriately. Two students fought over a stool, while a male student tried to remove a book from a female student. Respondent did not intervene. Respondent was rated unsatisfactory in techniques of instruction because there was no background given for the lesson presented and lesson components were not properly sequenced. Respondent listed six unrelated activities on the board. The students were confused about the unrelated assignments and the relationship between the assignments and what they had learned in the previous lesson. In the middle of the lesson, Respondent interrupted the students and read to them about the life of Frederick Douglas. Respondent failed to explain the connection between the life of Frederick Douglas and the lesson objective of the day which involved an animal's environment influencing survival. During the post-observation conference on February 15, 2000, Assistant Principal Bethel made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies. The assistance included observing a fellow teacher and identifying five verbal and five nonverbal techniques to maintain specific behaviors of learners. Respondent was instructed to submit to Assistant Principal Bethel techniques that could be used to develop clear expectations to deal with students appropriately. Respondent was instructed to list the name of each student who acted inappropriately, and to submit a written plan to Assistant Principal Bethel as to how Respondent would handle negative behavior in the classroom. In addition, Respondent was directed to read specific pages from the TADS Prescription Manual, and to complete certain activities in that manual. Respondent was directed to create a written outline with an introduction to each lesson indicating the instructional objectives, the planned activities, and a description of how those activities will assist the students in reaching the instructional objective. Respondent submitted her completed activities in a timely manner. On March 9, 2000, two days after Respondent's 90-day performance probation period ended, Principal Ronnie Hunter performed a confirmatory observation to determine if Respondent's deficiencies had been corrected. Principal Hunter formally observed the Respondent in her science class and rated her unsatisfactory in Category II, Knowledge of Subject Matter, Category III, Classroom Management; Category IV; Techniques of Instruction; and Category VI, Assessment Techniques. After the confirmatory observation, Respondent was notified that she had failed to correct her performance deficiencies. Thereafter, on March 9, 2000, Principal Hunter forwarded to the Superintendent of Schools his recommendation that Respondent's employment be terminated. By letter dated March 10, 2000, the Superintendent notified Respondent that he was recommending to the School Board that her employment contract be terminated because she failed to correct performance deficiencies during her 90-calendar-day performance probation period. The assistance provided to Respondent through her prescriptions was substantial and appropriate to remedy her cited deficiencies. Although she claims that in-service training opportunities to help correct the noted performance deficiencies were not provided, she was directed to and observed several fellow colleagues engaged in teaching. Dr. O'Donnell, a 31-year veteran with the school system and an expert in TADS and teacher assessment, specifically testified that in-service training is not limited to formal education or workshops, but includes observation of fellow teachers. Although the School Board provided sufficient and meaningful in-service training opportunities to Respondent, she failed to show improvement. Respondent further claims that the School Board failed to meet TADS requirements after she was placed on a 90 calendar- day performance probation in October 1999, following the initial and rescinded observation conducted by Principal Hunter on October 12, 1999. Respondent claims that after she was initially placed on probation in October, Principal Hunter failed to notify her that she was being removed from probationary status due to a procedural error. Principal Hunter testified he rescinded the October 12, observation and verbally told Respondent that he was removing her from the 90-calendar- day performance probation because he did not get a required signature on the post-observation report. Respondent on the other hand, claims she did not receive notification and, as a result, believed the observation conducted by Paulette Covin on November 8, 1999, and the subsequent observations conducted on December 13, 1999, and February 8, 2000, were observations within the 90 calendar-day probation period. Respondent's claim that she never received notice that she was no longer on probation following the October 1999 observation is disingenuous. Notwithstanding Principal Hunter's credible testimony that he verbally informed her that she was no longer on probation, Respondent was clearly placed on notice that she was on probation beginning November 17, 1999. Specifically, on November 15, 1999, a conference-for-the-record was held with Respondent following her unsatisfactory observation held on November 8, 1999, during which Respondent received a written prescription and was informed in writing that, as a result of that unsatisfactory observation, she was being placed on the 90-calendar-day performance probation period. Moreover, on November 17, Respondent signed the summary of the conference-for-the-record which clearly and unambiguously stated, "You were advised of the availability of personnel to assist you during the 90 calendar-day Performance Probation, which commences upon the date that you receive the written prescription." In addition, the School Board committed no statutory violation of any TADS procedures by rescinding the October 12 unacceptable observation. In fact, under TADS the School Board could not rely on the October 12 unacceptable observation to dismiss Respondent because the post-observation report lacked a required signature. The School Board correctly rescinded the October 12 unacceptable observation. The TADS' requirements and procedures were properly executed regarding the formal observations of Respondent and the evaluations of her teaching performance. Petitioner complied with all of the statutory time frames. Respondent also failed to demonstrate that Principal Hunter created a hostile environment toward Caucasian female teachers that resulted in the termination of Respondent's employment. There was no reliable evidence that Principal Hunter discriminated against Respondent at any time including his formal observations of Respondent pursuant to TADS. While Principal Hunter performed two formal observations noting Respondent's deficiencies including the rescinded observation on October 12, 1999, and the confirmatory on March 9, 2000, three different assistant principals also objectively evaluated and rated her unsatisfactory prior to Principal Hunter's confirmatory observation finding Respondent's performance unacceptable. Moreover, Principal Hunter interviewed and hired Respondent as a teacher in 1997. Finally, although the School Board's contract with UTD provides for a joint labor/management committee called the "TADS Monitoring Committee" to resolve evaluation and procedure disputes, Respondent never objected to the criteria, procedures, or assessments of the committee. In sum, Respondent failed to demonstrate that TADS procedures were not followed, or establish that she was harassed or discriminated against by Principal Hunter. On the other hand, Petitioner presented competent substantial evidence that Respondent consistently performed at an unsatisfactory level and failed to correct her deficiencies during the probationary period.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order terminating Respondent's employment and denying Respondent's claim for back pay. DONE AND ENTERED this 5th day of June, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2001. COPIES FURNISHED: Valerie Kiffin Lewis, Esquire Valerie Kiffin Lewis, P.A. 4801 South University Drive, Suite 102 The Atrium Centre Fort Lauderdale, Florida 33328 Timothy A. Pease, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issues in this case are whether Respondent satisfactorily corrected specified performance deficiencies within the 90-day probation period prescribed by Section 1012.34(3) (d), Florida Statutes, and, if not, whether Respondent's employment should be terminated.
Findings Of Fact A. 1. One of the statutory duties of Petitioner Miami-Dade County School Board ("Board") is to evaluate the performance of every teacher employed in the Miami-Dade County School District ("District"), at least once per year. To accomplish this, the Board uses a personnel assessment system known as "PACES," which is an acronym for Professional Assessment and Comprehensive Evaluation System. PACES is the product of collective bargaining between the Board and the teachers' union, and it has been duly approved by the Florida Department of Education. 2. The Board's evaluation procedure begins with an observation of the subject teacher, conducted by an administrator trained in the use of PACES. On a score sheet called the Observation Form for Annual Evaluation ("OFAE"), the evaluator rates the teacher's performance on 44 independently dispositive "indicators." The only grades assignable to the respective indicators are "acceptable" and “unacceptable”; thus, the evaluator's decision, for each indicator, is binary: yes or no, thumbs up or thumbs down.! A negative mark on any one of the 44 indicators results in an overall performance evaluation of "unsatisfactory." For the teacher under observation, therefore, each indicator constitutes, in effect, a pass/fail test, with his or her job hanging in the balance. 3. If the teacher passes all 44 of the independently dispositive indicators, then the teacher's performance is rated "setisfactory” and the evaluative process is complete. If, on the other hand, the teacher is given a failing grade on one or more of the 44 indicators and hence adjudged an unsatisfactory performer, then the initial observation is deemed to be "not of record" (i.e. inoperative) anda follow-up, “for the record" evaluation is scheduled to occur, upon notice to the affected teacher, about one month later. 4, In the meantime, the teacher is offered the assistance of a Professional Growth Team ("PGT"), a group of peers who, having received special training in PACES, are in a position to help the affected teacher correct performance deficiencies in advance of the follow-up evaluation. 5. The follow-up evaluation is conducted in the same manner as the initial "not of record" evaluation. If the teacher passes all 44 indicators, then his performance is deemed satisfactory and the evaluative process is complete. If he fails one or more of the indicators, however, then the teacher is placed on probation for a period of 90 calendar days (excluding vacations and holidays). The probation period is preceded by a formal Conference-for-the-Record ("CFR"), at which notice of the specific performance deficiencies is provided to the teacher. As well, the teacher is provided a PGT and given a Professional Improvement Plan ("PIP"), wherein particular remedial tasks, intended to help the teacher correct the noted performance deficiencies, are assigned. 6. During the performance probation, the teacher must be formally observed at least twice, by an evaluator using the OFBE. If, on any of these probationary observations, the teecher fails at least one indicator, then another PIP is prepared and offered. 7, The performance probation could end early, before 90 days have passed. This occurs when, during probation, the teacher is deemed to have mastered all the required indicators. At that point, should it come, the teacher receives a satisfactory performance rating, and the evaluative process is terminated. 8. ‘Within 14 days after the end of probation, assuming the process has not ended sooner as just described, a "confirmatory evaluation" is conducted, using the OFAE. The purpose of the confirmatory evaluation is to determine whether the noted performance deficiencies were corrected. If they were, then the teacher's performance is rated "satisfactory." If not, the principal then makes a recommendation to the superintendent whether to continue or terminate the teacher's employment. 9. As mentioned above, a PACES evaluation takes account of 44 crucial indicators. The indicators are organized under "components." The 44 outcome determinative indicators fall within 21 components, which are identified on the OFAE. These components are organized, in turn, under "domains," of which six are identified on the OFAE. 10. Each domain has been assigned a Roman numeral identifier: I through VI. The components are distinguished alphabetically: A, B, C, etc. The indicators are numbered using Arabic numerals. Each specific indicator is named according to the Roman numeral of its domain, the letter of its component, and its own Arabic number. Thus, for example, the first indicator under Component A of Domain I is referred to as "TL,A.1." 11. Notwithstanding the PACES taxonomy, the classifications of "domain" and "component" are useful only as a means of organizing the indicators. This is because a teacher does not pass or fail a performance evaluation at the domain level or at the component level; rather, he passes or fails at the indicator level, for, again, each of the 44 indicators is independently dispositive under PACES.” Thus, each of the determinative 44 indicators is of precisely equal weight. None is more important or less important than another.? B. 12. At all times material to this case, Respondent Leopoldo Mutis ("Mutis") was a teacher in the District. From 1999 until April 2004, when the Board suspended him pending termination of employment, Mutis taught middle school Spanish and ESOL at Key Biscayne K-8 Center ("Key Biscayne"). 13. During the 2003-04 school year, an evaluator observed Mutis in his classroom on five separate occasions, each time using the OFAE. The dates of these evaluations were, and the names of the respective evaluators are, as follows: Evaluation Date Evaluator October 23, 2003 Ana Maria Rasco, Principal, Key Biscayne November 17, 2003 Ms. Rasco January 13, 2004 Blanca Herrera-Torres, Assistant Principal, Key Biscayne February 18, 2004 Cathy Williams, Assistant Principal, Key Biscayne March 15, 2004 Ms. Rasco 14. The Board contends that Mutis failed ali five evaluations; the first, however, was deemed "not of record" and thus is relevant only insofar as it opened the door to the process that followed. The following table shows, for each evaluation for the record, the indicators that the respective evaluators thought Mutis had failed: Ti-lt-05 Gl-1s-08 02-18-06 G3-15-04 ; | | x | O1-13-04 [ TvEt_[ vat ver Ti-17-03 CU td 04 x | x [x 2-28-08 03-15-04 x 15. Because Ms. Rasco identified five performance deficiencies on November 17, 2003, Mutis was placed on 90-day performance probation, effective November 26, 2003, pursuant to the procedure described in detail above. Ms. Rasco held a CFR on November 25, 2003, to review with Mutis the identified deficiencies and explain the procedures relating to the 90-day probation. Following the CFR, Mutis was given written notice of unsatisfactory performance, in the form of a "Summary of Conference-For-The-Record And Professional Improvement Plan (PIP)," dated November 26, 2003 ("Summary"). In the Summary, Ms. Rasco charged Mutis with failure to satisfactorily perform the following PACES indicators: IV.A.3, IV.A.5, IV.B.2, VI.C.2, and VI.C.4. (These five indicators are highlighted vertically in the table above.) At the same time, Mutis was given a PIP, anc a PGT was assembled to provide assistance. 16. Following the confirmatory evaluation on March 15, 20C4, based on which Ms. Rasco identified 13 deficiencies as shown in the table above, Ms. Rasco notified the superintendent thet Mutis had failed to correct noted performance deficiencies during a 90-day probation and recommended that Mutis's employment be terminated. The superintendent accepted Ms. Rasco's recommendation and notified Mutis, by letter dated March 31, 2004, of his decision to recommend that the Board terminate Mutis's employment contract. On April 14, 2004, the Board voted to do just that. Cc. 17. In general terms, the ultimate issue in this case, according to Section 1012.33(3) (d)2.b., Florida Statutes, is whether Mutis corrected noted performance deficiencies as of the two-week period after the close of the 90 calendar days' probation. In view of the issue, the initial "of record" evaluation of November 17, 2003, is primarily relevant because it established the five "noted performance deficiencies" that Mutis needed to correct.’ Indeed, the Board cannot terminate Mutis's employment based on other deficiencies allegedly found during probation or at the confirmatory evaluation, but rather must focus exclusively on those five particular deficiencies which Mutis was given 90 calendar days to correct, for reasons that will be discussed below in the Conclusions of Law. Stated more precisely, then, the ultimate question in this case is whether any of the five specific deficiencies identified in the Summary provided to Mutis on November 26, 2003, persisted after the 90-day probation. 18. The two evaluations that were conducted during Mutis's probation (on January 13, 2004, and February 18, 2004) are of present interest mainly because they show Mutis making steady progress toward eliminating the noted deficiencies. By January 13, 2004, according to Ms. Herrera-Torres, Mutis had corrected three of the five noted deficiencies (Indicators IV.A.3, VI.C.2, and VI.C.4), leaving just two (Indicators IV.A.5 and V.B.2). When Ms. Williams evaluated Mutis on February 18, 2004, she found that the teacher had corrected four of the five noted performance deficiencies, failing him only on Indicator IV.A.5. 19. The evidence presented at hearing is insufficient, however, to support findings that Mutis was, in fact, deficient 10 with respect to (a) Indicators IV.A.5 and V.B.2 as determined by Ms. Herrera-Torres or (b) Indicator IV.A.5 as determined by Ms. Williams. As for the evaluation of January 13, 2004, it is found that the purpose of the learning task observed by Ms. Herrera-Torres that day was obviously to teach students rules relating to gender identification in the Spanish language. Thus, Indicator IV.A.5, which requires that the purpose or importance of learning tasks be clear to learners, was met. Regarding Indicator V.B.2, which requires that wait time be used as appropriate to enhance the development of thinking skills, Ms. Herrera-Torres gave no testimony at hearing; and, her cor.temporaneous written summary of Mutis's alleged deficiency in this area merely states, in conclusory fashion, that Mutis afforded students insufficient “wait time to think and develop answers to questions." A subjective opinion, devoid of facts, is not enough to justify an ultimate determination of insufficient performance in this regard. 20. As for the evaluation of February 18, 2004, it is found that Mutis informed the class observed by Ms. Williams that he intended to review a previous lesson or lessons. Having told his students that the purpose of the learning task was review, Mutis satisfied Indicator IV.A.5. 21. Thus, based on the evidence presented, it is found that Mutis's performance probation in connection with the five 11 noted deficiencies should have been terminated on January 14, 2004, or February 18, 2004, at the latest.° 22. As it happened, however, Mutis’s probation was not prematurely terminated, and Ms. Rasco performed a confirmatory evaluation on March 15, 2004. She found that Mutis had corrected two of the five noted performance deficiencies, giving Mutis a passing grade on Indicators IV.A.3 and VI.C.2. The remaining three deficiencies upon which termination could legally be based are identified in the table above with the "@" symbcl. It is to these three allegedly uncorrected deficiencies thet our attention now must turn. 23. The Board contends, based on Ms. Rasco's confirmatory evaluation of March 15, 2004, that Mutis was still, as of that date, failing satisfactorily to perform the following PACES indicators: IV.A.5: The purpose or importance of learning tasks is clear to learners. V.B.2: Wait time is used as appropriate to enhance the development of thinking skills. vI.C.4: Learners receive specific feedback when learning tasks and/or learning outcomes are completed. 24. The only descriptive evidence in the record regarding Muzis's performance on March 15, 2004——and hence the only evidence of historical fact upon which the undersigned can decide whether Mutis failed adequately to perform the three 12 indicators just mentioned—consists of Ms. Rasco's testimony, together with a memorandum dated March 15, 2004, that Ms. Rasco prepared for Assistant Superintendent Essie Pace. 25. At the final hearing, Ms. Rasco recounted what she had seen on March 14, 2004, when she observed Mutis in the classroom for 50 minutes: [1] This lesson—this lesson was atrocious. [2] First of all, Mr. Mutis walked into class three minutes late, the children were already seated in class. [3] When he walked in late, and I found this particularly offensive to the students because Mr. Mutis had been free for the two periods prior, this was fourth period, he had been free during second and third period so for him to have come in late was very difficult for me to understand. [4] Secondly, he was unprepared. He did not have his lesson plans readily available. He had to rummage through the stacks of papers on his desk to find his lesson plans. [5] This was a Monday morning, he had been out Friday, and he had proceeded to teach the lesson that the children had already done on Friday with the substitute. [6] Several students started to complain they could not understand why they had to repeat the lesson that they had already done on Friday, he was asking them to read some pages from a story, and they kept on explaining to him that they had already done it. He didn't explain to the children his rationale for doing—-for having them do it again, he just went through the lesson. 13 [7] There was an inordinate amount of off- task behavior. There was one student——and in this class there were maybe seven or eight students, this was a small class, there was one student who spent a long time catapulting a pen. There was another student who had birthday balloons attached to the back of her chair, and she was playing with the birthday balloons, fidgeting with the balloons for an extended period of time. [8] There was another student who was doing his writing assignment on a little, must have been a little five, maybe, a five by eight sheet of paper even though he told the students at the beginning of the lesson to take out their folders, this child was writing on a small piece of paper, and he didn’t address it. [9] Q. Did he address any of that off-task behavior? [10] A. He did not address any of these behaviors, he did not redirect the students at any point and time. [11] Again, the questioning techniques, he was asking questions without, again, any regard to the student responses, without probing. 12] Some students, I think, were speaking in Spanish, and, again, this was an English lesson, and yet they were never redirected to the English language. This one was just— 13] Q. They were in his class to learn English? [14] A. This was an English class. Students were not given any feedback. Sometimes he asked questions, if he didn't get a response he would answer, he would 14 answer the question himself and go to the next question. is Q. Could you tell whether he appeared to care about the class? 16 A. No, it's like he had given up. 17 Q. Do children react to that? 18 A. Children were definitely reacting [19] Q. His children were? 20} A. Yes, I mean, he was not getting any cooperation or engagement from the children. Final Hearing Transcript at 74-76 (numbering added) . 26. In her contemporaneous memorandum of March 15, 2004, which supplements and explains the foregoing testimony, Ms. Rasco stated in relevant part as follows: A chronology of observations and results for the above employee is provided for your review. Data indicate that this employee has not demonstrated corrective action. Of particular concern during the confirmatory observation in Seventh/Eighth Grades Language Arts Through ESOL was: II.A.1 The teacher entered the classroom three minutes after the bell signaling the beginning of fourth period had rung. The learners had already entered the classroom. The teacher did not have his lesson plans readily available and had to take time to locate them. There was no rationale for not being prepared since the teacher did not have students in his class during second or third period. 15 TII.B.4 At the beginning of the lesson when the teacher instructed the learners to turn to pages 162-163, three different learners told the teacher they had already read those pages with the substitute teacher on Friday. The learners did not understand why they had to repeat the assignment and the teacher did not give them any reason for repeating the lesson. V.A.1 When learners attempted to develop associations using their own experiences, the teacher curtailed this experience by allowing interruptions from other learners and letting several learners speak at the same time. V.C.1 No concepts that required critical analysis or problem-solving were developed. For example, the teacher asked, "Why is it important to learn about people who have difficulties in life?" He did not get a response and proceeded to ask, "Should everyone learn sign language?" V1.A.2 Learner engagement was not monitored. There were numerous instances of off-task behavior throughout the lesson which the teacher did not address. One learner was catapulting a pen, second learner was daydreaming and not following along as others read orally, a third learner was fidgeting with her birthday balloons, and a fourth learner was writing on a 3"x8" sheet of paper instead of her notebook as the teacher had initially instructed. The teacher never re-directed the off-task behaviors during the lesson. v1l.C.4 At various points throughout the lesson, several learners made comments and responded to questions in Spanish. At no time did the teacher redirect the responses to English, assist the learners in making their comments in English, or provide feedback. 16 27. To repeat for emphasis, any findings of historical fact concerning Mutis's performance during the confirmatory evaluation must be based on the foregoing evidence, for that is all the proof there is on the subject.® 28. Ms. Rasco did not explain how she had applied the PACES indicators to her classroom observations of Mutis to determine that the teacher's performance was not up to standards. D. 29. The three indicators at issue in this case, it will be seen upon close examination, are not so much standards upon which to base a judgment as factual conditions ("indicator- conditions") for which the evaluator is supposed to look. Ifa particular indicator-condition (e.g- the purpose of learning tasks is clear to learners) is found to exist, then the evaluator should award the teacher a passing grade of "acceptable" for that indicator (in this example, Indicator IV.A.5); if not, the grade should be "unacceptable." 30. But the indicator-conditions are not objective facts, equally perceivable by all observers; they are, rather, subjective facts, which come into being only when the evaluator puts historical (or observed) facts against external standards, using reason and logic to make qualitative judgments about what occurred. Subjective facts of this nature are sometimes called 17 "ultimate" facts, the answers to "mixed questions” of law and fact. 31. To illustrate this point, imagine that the class Ms. Rasco observed on March 15, 2004, had been videotaped from several different camera angles. The resulting tapes would constitute an accurate audio-visual record of what transpired in Mutis's class that day. Anyone later viewing the tapes would be able to make detailed and accurate findings of objective historical fact, including words spoken, actions taken, time spent on particular tasks, etc. But, without more than the videotapes themselves could provide, a viewer would be unable fairly to determine whether, for example, the purpose of learning tasks was "clear" to the students (Indicator IV.A.5),/ or whether “wait time" was used appropriately to enhance "thinking skills" (Indicator V.B.2).° This is because to make such determinations fairly, consistently, and in accordance with the rule of law requires the use of standards of decision, yardsticks against which to measure the perceptible reality captured on film. 32. Another term for standards of decision is "neutral principles." A neutral principle prescribes normative conduct in a way that permits fair judgments to be made consistently— that is, in this context, enables the reaching of similar results with respect to similarly performing teachers most of 18 the time. A neutral principle must not be either political or results oriented. It must be capable of being applied across-~- the-board, to all teachers in all evaluations. 33. In the unique milieu of PACES, neutral principles could take a variety of forms. One obvious form would be stendards of teacher conduct. Such standards might be defined, for example, with reference to the average competent teacher in the District (or school, or state, etc.). In an adjudicative proceeding such as this one, expert testimony might then be necessary to establish what the average competent teacher does, for example, to provide specific feedback upon the conclusion of learning tasks (Indicator VI.C.4) or to enhance the development of thinking skills through appropriate use of wait time (Indicator V.B.2).° 34. Other standards might be definitional. For example, definitions of terms such as "wait time” and "thinking skills" would facilitate the application of Indicator V.B.2. Still other standards might be framed as tests, e.g. a test for determining whether wait time enhances the development of thinking skills. 35. However the neutral principles are framed, at bottom there must be standards that describe what "satisfactory" performance of the indicators looks like, so that different people can agree, most of the time, that the indicator- 19 conditions are present or absent in a given situation-—and in other, similar situations. Without neutral principles to discipline the decision-maker, the indicators can be used as cover for almost any conclusion an evaluator (or Administrative Law Judge) might want to make. 36. In this case, the record is devoid of any persuasive evidence of neutral principles for use in determining, as a matter of ultimate fact, whether the conditions described in the three relevant indicators were extant in Mutis's classroom on March 15, 2004, or not. E. 37. In this de novo proceeding, the undersigned fact- finder is charged with the responsibility of determining independently, as a matter of ultimate fact, whether, as of the two-week period following probation, Mutis had corrected all of the performance deficiencies of which he was notified at the outset of probation. As mentioned, the only evidence of Mutis's post-probation teaching performance consists of Ms. Rasco's testimony about her observation of Mutis for 50 minutes on March 15, 2004, which was quoted above, along with her contemporaneous memorandum to Ms. Pace. 38. Ms. Rasco's contemporaneous memorandum sheds light on her testimony by clarifying which of the indicators was implicated by particular observations. Not much of this 20 evidence, as will be shown below, is relevant to Mutis's performance in relation to the three indicators on which termination could be based. (The discussion that follows refers to che numbered answers as quoted in paragraph 25 supra.) 39. Answers 2, 3, and 4 pertain to purported deficiencies with regard to Indicator II.A.1.*° Having been rated unsatisfactory in this area for the first time on March 15, 2004, Mutis cannot be fired for these alleged deficiencies. This testimony, therefore, is irrelevant. 40. Answers 5 and 6 relate to alleged deficiencies with respect to Indicator III.B.4.*' Having been rated unsatisfactory in this area for the first time on March 15, 2004, Mutis cannot be fired for these alleged deficiencies. This testimony, therefore, is irrelevant. 41. Answers 7, 8, and 10 relate to alleged deficiencies pertaining to Indicator VI.A.2.° Having been rated unsatisfactory in this area for the first time on March 15, 2004, Mutis cannot be fired for these alleged deficiencies. This testimony, therefore, is irrelevant. 42. Answers 16, 18, and 20 were not clearly associated with any particular deficiency. The undersigned finds this testimony unhelpful in determining whether Mutis was unsatisfactorily performing in the areas of Indicators IV.A.5, V.B.2, or VI.C.4. 21 43. Answer 1 is simply a conclusion, which the undersigned finds unhelpful as a basis for independent fact-finding. 44. This leaves Answers 12 and 14, which relate to alleged deficiencies in Indicator VI.C.4, which is a noted performance deficiency upon which termination could be based. The thrust of this testimony is that Mutis addressed some students in Spanish, rather than English. Even if Mutis did this, however, such does not implicate the Indicator in question, which is concerned with the provision of specific feedback upon the completion of learning tasks or outcomes, because Indicator VI.C.4 is silent as to the means of communication. Beyond that, Ms. Rasco offered the naked conclusion that Mutis failed to provide feedback, which merely tells the undersigned how to rule and her.ce is unhelpful. 45. In sum, the evidence is insufficient for the undersigned to find, as a matter of ultimate fact, that Mutis's performance on March 15, 2004, was deficient with regard to Indicators IV.A.5, V.B.2, and VI.C.4. 46. As important as the paucity of evidence establishing the objective historical facts concerning Mutis's performance on March 15, 2004, is the failure of proof regarding neutral principles for use in determining the existence or nonexistence of the relevant indicator-conditions. Even if the undersigned had a clear picture of what actually occurred in Mutis's 22 classroom that day, he has been provided no standards against which to measure Mutis's performance, to determine whether the indicator-conditions were met or not. 47. The absence of evidence of such standards is fatal to the Board's case. To make ultimate factual determinations without proof of neutral principles, the undersigned would need to apply standards of his own devising. Whatever merit such standards might have, they would not be the standards used to judge other teachers, and thus it would be unfair to apply them to Mutis.
Conclusions For Petitioner: Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 For Respondent: Leopoldo Mutis, pro se 4001 North 67th Terrace Hollywood, Florida 33024
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating Mutis of all charges brought against him in this preceeding; (b) providing that Mutis be immediately reinstated to the position from which he was suspended; and (c) awarding Mutis back salary, plus benefits, to the extent these accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 15th day of December, 2004, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2004. 37
Findings Of Fact The Petitioner, Ms. Ann E. MacPherson, is on continuing contract with the Monroe County School District, and has been a teacher for that District for 19 years. She started first as a physical education teacher in elementary school for one year, and next taught physical education for six or seven years in middle school. Subsequently she started having health problems, and on doctor's advice, switched to teaching something other than physical education. She switched to science. She had had no formal education to teach science, except for courses in her physical education degree. However, she is now certified in Science and Physical Education. For the past two years, the Petitioner has taught General Science and Health at Key West High School. In October 1981, Ms. MacPherson injured her foot on sharp glass. She was then a diabetic, and the injury failed to heal properly. Over the next several years, she had surgery nine times in one foot and seven times in the other foot. Her injuries caused her to require lengthy hospitalization and recuperation periods away from the class room. In the school year 1981-82, she was absent 60.5 days, in the year 1982-83, she was absent 74 days and in the year 1983-84 the Petitioner was absent 48 days. The school year is 180 days. During some of her periods of recovery, Ms. MacPherson was able to work in the classroom, but was not able to walk around the classroom due to her foot injuries. On the days that the Petitioner was absent from her classroom, she continued to supervise the work of the teacher substitute from her home. She continued to prepare the lesson plans, correct notebooks, make up the tests, grade tests, and help the substitute teacher through continuing contact. She asked for a substitute teacher by name to help with continuity of instruction. Ms. MacPherson taught Intermediate Science Curriculum Study (ISCS) initially in the middle school for six or seven years, and then at Key West High School since at least 1980, except for one year when she taught Health. The ISCS program placed special emphasis upon individualized learning. Students were expected to select science areas for investigation or experiment from a list prepared by the teacher, and then to progress at their own rate to conduct the investigation or experiment. Continuity of instruction by the same teacher was especially important for the ISCS course. Other teachers who taught the ISCS program were required to take a summer training course, but the Petitioner was not. The Petitioner received some informal training from Ms. Betty Cox, the school district curriculum coordinator. During the time that the Petitioner taught science at the middle school (Horace O'Bryant), she organized and used field trips as an instructional technique. She was unique among other teachers in this respect in the emphasis that she placed upon field trips, and the fact that she used her own car for transportation and paid expenses from her own pocket. Also while she was at Horace O'Bryant Middle School, the Petitioner applied for and obtained several small grants from the Department of Education for teaching environmental education. An administrator of these grants testified that only about one-half of those who apply are successful, and that the Petitioner's projects were very good. By the 1979-1980 school year, the Petitioner had transferred to Key West High School. Almost all of her students, if not all, were not headed for college. Typically these students were probably going to take jobs fishing, as clerks, or waitresses, after leaving high school, and were of average or less than average academic ability. Homer B. Herrick, Jr., was Chairman of the Department of Science at Key West High School for the school years 1979-80 to 1983-84, and in that capacity, was supervisor of the Petitioner. During the first two years, Mr. Herrick observed no significant problems with Petitioner's teaching. Mr. Herrick observed Petitioner in the classroom during these two years. He had routine lesson plan problems with the Petitioner, of a type that all teachers had, and found that the Petitioner was willing to implement his suggestions, and did so. In the school year 1979-80, the Petitioner received a performance evaluation, Petitioner's Exhibit 6. The evaluation was very good. Ms. MacPherson was praised for her extraordinary efforts to enhance her science program by use of field trips and slide/sound track presentations. The annual evaluation stated that she was a "dedicated instructor, who goes all out for her students." She was commended for "many extra hours" she spent to enhance her program, and the evaluation concluded that she "works well with other members of her department." Ms. MacPherson was criticized in two areas: coordination of field trips, and greater use of the guidance staff to control classroom discipline. These, however, were minor observations, as the evaluation concluded that "overall discipline is very good." The evaluation was signed by the Principal of Key West High School, Clarence Phillips, and was prepared by the Assistant Principal, Thomas Roberts. Mr. Roberts could not remember if his evaluation was based upon his own observations, or the combined observations of himself, Department of Science Chairman Herrick, and a Mr. Gallagher. During the school year 1980-81 Principal Phillips assigned Assistant Principal Roberts, Department of Science Chairman Herrick, and District Curriculum Coordinator Betty Towns Cox to conduct a series of classroom observations of the Petitioner to evaluate her teacher skills. The date is established by Petitioner's Exhibit 3, a letter from Alvin Burney, President, United Teachers of Monroe, to the Petitioner dated February 24, 1981. The date of February 1981 as the date of the first intensive observations was corroborated, apparently, by Ms. Cox's log of visits, which indicated she spent 14 hours in that month in the classroom observing the Petitioner with Mr. Roberts and Mr. Herrick. Transcript, p. 75. (The log is not in evidence.) Ms. Cox, however, placed primary emphasis in her testimony upon observations she made in the 1982-83 and 1983-84 school years. The Petitioner placed the observation period in the 1981-82 school year, Mr. Roberts could not remember if it was in the 1980-81 or 1981-82 school year, and Mr. Herrick placed the date of the observations in the 1981-82 school year. The written evidence of the date is better evidence than the conflicting memories of the witnesses. Department Chairman Herrick was one of those requested to conduct these observations. The observations were almost daily, and went on for about two weeks. To Mr. Herrick, discipline in the classroom was the primary problem. The observers were looking for a teaching deficiency as a potential cause of the discipline problem, but Mr. Herrick did not recall any problem with Ms. MacPherson's delivery of instruction. Mr. Herrick testified that after these observations, extensive plans were formulated for improvement, and these plans were discussed with the Petitioner. In the following months, there seemed to be less problem with discipline, and it was his opinion that the Petitioner had incorporated and implemented their suggestions. Assistant Principal Thomas Roberts also observed Ms. MacPherson during this period of intensive observations in the 1980-81 school year. Tee agreed with Mr. Herrick that the primary problem causing the observations was discipline in Petitioner's classroom. Mr. Roberts observed the Petitioner 5 to 8 times over a period of about a month. Each of the observations were for a continuous 2 to 3 hour time each day. He became "extremely concerned" about the lack of discipline maintained by the Petitioner in some of her classes. In the area of teaching, Assistant Principal Roberts was "pleased that she was making a strong effort in terms of not only the field trips and the slide series, but, you know, she was interested in any information that was given her by Mr. Herrick or Mrs. Cox in terms of her planning process, the things teachers need to do. And more importantly, her interaction with children, you know, she was concerned about that." Transcript, p. 135. Assistant Principal Roberts, however, felt that he was not competent to give an opinion as to Petitioner's competence in instruction, that Mr. Herrick and Ms. Cox were assigned at that time to evaluate that area, and that he himself focused primarily on the discipline issue. He concluded that the Petitioner at that time (1980-81) needed more training in classroom discipline skills. One of the causes of disciplinary problems that year was one student who caused many problems in one of the Petitioner's classes. The Petitioner had had the older brother of this student, and both were significant disciplinary problems. Mr. Roberts agreed that the Petitioner had more serious problems in one class in particular. Transcript, pp. 133-34. The Petitioner testified that the administration failed to help her discipline this one student. Transcript, pp. 164-65. However, it is clear from the testimony of Mr. Herrick and Mr. Roberts above that the Petitioner in general had problems disciplining her classes, and the problem was not confined to one student. In late 1980 and early 1981, Alvin Burney was President of the United Teachers of Monroe, and in that capacity he was contacted by Ms. MacPherson with regard to the evaluation process that had been instituted by Principal Phillips. Mr. Burney met with Principal Phillips, and Petitioner's Exhibit 3, a letter from Mr. Burney to Ms. MacPherson, summarizes what Mr. Burney says he heard from Mr. Phillips at that meeting. In the letter to Ms. MacPherson, Mr. Burney listed items which he said he would submit to Principal Phillips as suggestions for resolving these problems. The suggestions in the letter were apparently not implemented by Principal Phillips, except that the suggestion that fewer observations be conducted was implemented. At about the same time, Mr. Burney talked with the Superintendent, and the Superintendent told him that he had a list of teachers that were not, in his opinion, performing to his standards, and that he wanted to look at ways these teachers could be improved or be terminated. The Petitioner was one of these teachers. The Respondent objected to this testimony as hearsay, and lack of foundation: time, who said it, and so forth. The record contains an adequate foundation. Transcript, p. 114. The testimony is the testimony of an agent of the Respondent, and admissible as an exception to the hearsay rule. Section 90.803(18)(d), Fla. Stat. (1984). When the Petitioner testified, she misplaced the period of intensive observations as having occurred in the 1981-82 school year. As discussed above, other more credible evidence establishes the period as February 1981 in the 1980-81 school year. The Petitioner did not mention the problem of discipline in the classroom as a cause for the observations, but emphasized instead what she characterized as a misunderstanding at the beginning of the year as to what was expected of her in teaching the ISCS program that year. She said that at the beginning of the year, there was not enough money to buy equipment for physics, chemistry, and her ISCS course, and that with the knowledge and approval of Mr. Herrick and Ms. Cox, the Petitioner planned to present only one ISCS unit at the beginning of the year, to present more general science instruction, and then to present two ISCS units at the end of the year. But midway through the year, Mr. Phillips called her in and criticized her for not teaching the ISCS units, and started the observations by Herrick, Roberts, and Cox. The Petitioner said that apparently Mr. Phillips had not been told of the plans approved earlier by Cox and Herrick. Ms. MacPherson's position at the hearing was the same as that which she expressed in June 1981 as a response to her 1980-81 evaluation, and is credible. See paragraph A.1., attachment to Petitioner's Exhibit 5. At the end of the school year 1980-81 (May 20, 1981) Petitioner received her annual teacher evaluation, Petitioner's Exhibit 5. The evaluation was signed by Principal Phillips. The evaluation rated the Petitioner acceptable in only 3 categories. In the following categories the Petitioner was rated needs improvement:" preparation and planning, techniques of instruction, teacher-student and parents, and personal qualities. The Petitioner was evaluated as "unacceptable" in classroom management. However, Principal Phillips did not personally observe the Petitioner in the classroom that year, transcript, p. 217, and there is no other testimony in the record to support the conclusions of this annual evaluation, except classroom management, which was improved. Indeed, the testimony of Mr. Herrick and Mr. Roberts lead the Hearing Officer to conclude that Ms. MacPherson responded to the assistance and evaluations that occurred on an intensive basis, and made suitable and adequate improvements. Based upon all of the foregoing, it is the finding of the Hearing Officer that the Petitioner ultimately performed her job adequately for the 1980-81 school year, but that she had had significant disciplinary problems during the school year, which she was able to improve by the end of the year. At the beginning of the next school year (1981-82) following the year in which intensive observations had been conducted, the Petitioner made a special effort to request the assistance of Department Chairman Herrick to develop her lesson plans. The Petitioner wanted to avoid the problems she had had the previous year. In October of 1981, as discussed above, Ms. MacPherson injured her foot, and her serious medical problems began. She was absent 60.5 days during the 1981-82 school year. During the times she was able to attend class that year, her infected feet were open and draining, and standing aggravated her condition. At some time during that school year, Principal Phillips suggested that Ms. MacPherson take a medical retirement. Ms. MacPherson again contacted Mr. Burney, and Mr. Burney, on her behalf, wrote a letter dated February 22, 1982, to Mr. Phillips. It was Mr. Burney's position at that time that in his conversations with Mr. Phillips the year before, Mr. Phillips had agreed to "make arrangements during pre-planning of this school term to outline detailed expectations" for the Petitioner, and this was not done. The letter further stated, on behalf of the Petitioner, that it was the Petitioner's contention that since no more observations had been scheduled, the deficiencies complained of in the previous year had been corrected. At the end of the 1981-82 school year, the Petitioner again received her annual evaluation signed by Mr. Phillips. Mr. Phillips did not personally observe the Petitioner, and the record does not contain any other competent evidence, either pro or con, concerning Ms. MacPherson's performance that year. Neither Mr. Herrick or Mr. Phillips testified specifically about her performance that year, and Ms. Cox's testimony cannot be adequately dated as pertaining to that year. The 1981-82 annual evaluation rated the Petitioner "acceptable" in the following area in which she had been rated "needs improvement" the year before: preparation and planning, professional responsibility, and relationship with staff and parents. Her grating in classroom management, which had been unacceptable in 1980-81, was rated acceptable. Ms. MacPherson was rated "needs improvement" in techniques of instruction and teacher-student relationship, which was the same rating in these categories as the prior year, and was rated unacceptable in personal qualities. Mr. Phillips commented in the evaluation that "although she says she wants to teach, I feel that her physical health is of an extremely serious nature and the suggestion of medical retirement should be reinvestigated." Respondent's Exhibit 1. The Petitioner attached a general rebuttal to the evaluation, simply disagreeing with critical ratings therein. It is the finding of the Hearing Officer from the foregoing that the Petitioner performed her duties adequately during the 1981-82 school year, except that her injuries caused her to miss a substantial number of classroom days, and her performance was impaired by her injuries. During the 1982-83 school year, as discussed above, Ms. MacPherson continued to have serious health problems with her feet. She was absent from school 74 days. In November 1982, she wrote to her Principal to try to schedule surgery and arrange for a permanent substitute so that the substitute, who she suggested by name in her letter, would provide some continuity of instruction for the students in the ISCS program. In preparation for this lengthy absence, Ms. MacPherson set up all the teaching units and day by day lesson plans for her substitute to follow, and prepared instructions for finding the equipment, how to use it, and how to monitor student use. She went over these plans with the substitutes assigned to her. But her hospitalization continued for longer than planned, and during this period she continued to make lesson plans at the hospital, to correct all the tests, correct notebooks, average grades, have frequent discussions of teaching with the substitute, and do the work she could do in the hospital or at hone. All of this work she did without pay because she was then on leave with pay, having exhausted her sick leave. During both the 1982-83 and 1983-84 school years, Ms. Cox, the school district curriculum coordinator, at the request of Principal Phillips, worked with the Petitioner on her lesson plans on a number of occasions. Ms. Cox also observed the Petitioner's performance in the classroom. Ms. Cox estimated that her observation periods lasted from as short as ten minutes to as long as a full hour, and that during the 1982-83 school year, she visited Petitioner's classroom about six times per month. Petitioner's counsel attempted to impeach Ms. Cox's testimony by cross-examination from logs prepared by Ms. Cox which recorded classroom visits she had made. The resulting record does not impeach the evidence provided by Ms. Cox. Much of the transcript simply consists of counsel's characterization of the logs, not testimony of a witness, and the logs were not offered into evidence. Further, it appears that the logs covered the period from 1980 to June 25, 1982, which is a period largely irrelevant to Ms. Cox's period of observations. Transcript, pp. 77, 76-77. Ms. MacPherson testified that the only times she remembered being observed by Ms. Cox was in 1976 and "when Mr. Phillips asked her to on that extensive evaluation." Transcript, p. 161. Ms. MacPherson placed the period of intensive observations, at the request of Principal Phillips, as the school year 1981-82. Transcript, pp. 173-75. At other times, the Petitioner testified that Ms. Cox did not stay in the classroom to observe her, but only beckoned her to come to the door, or visited in some other way so as to not disrupt the class. With respect to lesson plans, Ms. Cox's testimony did not disparage the Petitioner. Ms. Cox testified that she worked on lesson plans with the Petitioner, and that the end result contained some of her suggestions and some of the Petitioner's. Transcript, p. 42. The Hearing Officer concludes from this testimony that the Petitioner functioned adequately in collaboration with Ms. Cox on lesson plans, and had a good attitude in the process. Ms. Cox criticized the Petitioner in the classroom for failing to be "up and moving around, acting as a facilitator . . ." and testified that as a result, she observed a number of students not doing science. Transcript, p. 43. From this Ms. Cox stated her opinion that since the State now requires 72 hours of laboratory cork in science class, that "it would be very, very difficulty for a teacher as inactive as Ms. MacPherson to do seventy-two hours of lab work." Transcript, p. 45-46. In the same vein, she testified that the Petitioner would need a "tremendous" amount of training to be effective in the new science program. Transcript, p. 57. On cross-examination, Ms. Cox was asked specifically to state the factual predicated for her opinion. In addition to the question of moving about the room, Ms. Cox mentioned "facilitating" and "delivery of instructions." Transcript, p. 59. Ms. Cox defined "facilitating" to mean moving around the classroom, observing and instructing, so that concept was simply a short-hand way of combining the concept of motion, observation band delivery. Transcript, p. 59. Ms. Cox's criticism concerning delivery of instruction was that she said that the Petitioner delivered instructions only once, and that repetition was needed. Transcript, pp. 59-60. But when asked whether she had had enough day to day observation of the Petitioner to say "for a fact that her delivery was one shot," Ms. Cox admitted "no, I did not observe that frequently, but we talked about it." Transcript, p. 60. When asked to say whether she talked about it frequently, Ms. Cox testified: "I don't know if I said several occasions, or that we talked about it." Id. Thus, Ms. Cox did not have a sufficient basis upon which to concluded that Ms. MacPherson had any problems with delivery of instructions. With regard to the problem observed of students not on task, and Ms. MacPherson's failure to move around the room, Ms. Cox's opinion was not reliable for two reasons. First, she denied that average and less than average students would be expected to be less on task in an individually motivated science program than above average students. Transcript, p. 66. This is contrary to common sense and indicates that Ms. Cox did not have an adequate appreciation of the problems of teaching a science curriculum that depended substantially upon self-discipline and self-motivation. Further, Ms. Cox was aware that Petitioner's physical mobility in the classroom was significantly impaired due to her foot injuries, transcript, pp. 51-52, but she failed to evaluate how much of the "immobility" and "inactivity" of Ms. MacPherson was due to her feet, and how much may have been due to lack of teaching skills or motivation. Ms. Cox's opinion that Petitioner would have difficulty teaching the new science course because it requires 72 hours of laboratory work also appears not reliable. The ISCS program is no longer in existence at Key West High School, and the Petitioner would be required to teach a more traditional science course having 72 hours of laboratory work. Ms. Cox made no distinction between the ISCS individual laboratory curriculum and the new 72 hour requirement, but that is facially not reasonable. Since the new science program is no longer individualized study, then the 72 hours of laboratory work would also not be individualized. Thus, it would be much easier to teach this laboratory work because all students would probably be involved in the same laboratory experiment during the class period, and would not be able to choose individual experiments. Finally, Ms. Cox significantly limited the usefulness of her opinions by stating that she saw her role as one of assisting the Petitioner only, and not a responsibility for rigorous professional evaluation. She explicitly admitted: "I did not evaluate Ms. MacPherson. . . ." Transcript, pp. 47-48 (E.S.). For these reasons, Ms. Cox's opinions that the Petitioner was an "inactive" teacher, that she had problems with delivery of instruction, that she did not move among the students enough, and that she could not successfully teach the new science curriculum, are rejected as not being based upon sufficiently reliable evidence. On of the reasons given to Ms. Cox for taking steps to help the Petitioner was that parents had complained about the instruction of science by the Petitioner. However, since the complaints mentioned in the record were not complaints made personally to Ms. Cox, such purported complaints are hearsay within hearsay. Transcript, p. 50. As such, no finding can be made that such complaints in fact were actually made. The finding contained in the first sentence of this paragraph, however, can be made. Ms. Cox testified that by being absent sixty days or more in a one hundred eighty day school year, the Petitioner could not have provided her students with a minimum educational experience. Transcript, p. 45. Ms. Cox's opinion explicitly assumed that "the students had to miss a lot of instruction, because a substitute teacher could not just walk in and teach that program." Id. (E.S.). But Ms. Cox's opinion was not based upon an actual evaluation performed by Ms. Cox, but rather was based upon her generalized opinion drawn solely from the absences of Ms. MacPherson. Transcript, p. 56. Ms. Cox admitted that she did not test Ms. MacPherson's students to discover the actual educational level achieved, and that she had no objective criteria for her opinion. Id. Further, there is no evidence that Ms. Cox observed the degree to which Ms. MacPherson had supervised her substitutes, and the quality of instruction provided by the substitutes. For these reasons, Ms. Cox's opinion that Ms. MacPherson failed in fact to provide a minimal educational experience for her students is not sufficiently reliable as a basis for that finding. The fact that Ms. MacPherson candidly admitted that her students would have been better served had she not been absent so much, transcript, pp. 21, 25, does not support the conclusion that she failed to provide a minimal educational experience. At the end of the 1982-83 School year, the Petitioner received her annual evaluation, Respondent's Exhibit 2. She was evaluated as needing improvement in 2 of 8 relevant categories concerning classroom management, was evaluated as needing improvement in 2 of 5 relevant categories in delivery of instruction, needing improvement in the 1 relevant category of assessment techniques, and needing improvement in 6 of 11 relevant categories of professional characteristics. Principal Phillips emphasized the number of absences that Petitioner had had during the school year and her future health in the comments section. The evaluation was signed by Mr. Phillips, but he did not observe the Petitioner in the classroom during that year. At the end of the evaluation, Ms. MacPherson asked to be allowed the opportunity to submit a rebuttal if the criticisms in the evaluation were directed at her teaching skills unassociated with her illness and injuries. That question was not answered by the Respondent, and the Petitioner did not submit further rebuttal. In the pre-planning stages before the beginning of the 1983-84 school year, Ms. MacPherson contacted her Departmental Chairman, Mr. Herrick, and told him that she felt she was on unfirm ground, and that she wanted to be sure that she fulfilled what was expected of her. At that point, Mr. Herrick was no longer making observations of Ms. MacPherson, but he did look over her lesson plans a few times at that time, and he concluded that her lesson plans were satisfactory. Mr. Herrick sought to explain why he was no longer observing and evaluating the performance of the Petitioner at this time by stating that he had "conflicting duties" as a department chairman, wherein he was supposed to help teachers, and he felt it would have been difficult for him to make judgements in a "dismissal type situation." Transcript, p. 145(a). There was no other explanation for Mr. Herrick's departure from his expected normal role as direct supervisor of Ms. MacPherson. It must be concluded from Mr. Herrick's apparent exit from evaluative responsibilities and his excuse that he was too close to the Petitioner to participate in a "dismissal type situation" that by the fall of 1983, a decision had been made to actively pursue evaluation aimed at dismissal of the Petitioner. Nicholas A. Fischer, Director of Human Resources for the Respondent, is responsible in part for professional development and training of teachers, and other duties as assigned by the Superintendent. Dr. Fischer holds a Doctorate in Administration, Planning, and Social Policy from Harvard University. In September 1983, Dr. Fischer was requested by Principal Phillips to observe and evaluate the teaching skills of the Petitioner. Prior to conducting these evaluations, Dr. Fischer had no prior training or knowledge of the curriculum of the ISCS program, and to provide himself with some basis for conducting the evaluations, Dr. Fischer telephoned Dr. William Snyder by telephone. Dr. Snyder is a professor of science education at Florida State University and was one of those involved with writing the ISCS program. From this telephone conversation, Dr. Fischer developed the teaching standard for evaluating the Petitioner. Dr. Fischer conducted his first evaluations on October 13 and 14, 1983. The time spent in observation of the Petitioner was three class periods. Transcript, p. 95. Dr. Fischer was accompanied on at least one of these observation periods by Principal Phillips. At the end of the observations, Dr. Fischer and Principal Phillips prepared the observation form, Respondent's Exhibit 6. Dr. Fischer testified that he observed the Petitioner observing student activity and behavior from the front of the room and by walking around. He criticized her for not discussing with students the tasks on which they were working. At the beginning of the period, the Petitioner told the students to continue on the individual work they had been doing the prior day. Once they completed those tasks, the students were told to begin new work to be chosen by them from a list on the board. After class began, Dr. Fischer noted that the Petitioner failed to discuss the progress of work with individual students, and did not ask students to explain what they were doing, what they intended to do next, and whether they were having problems. Instead, the Petitioner stood in front of the room, or walked around, looking at student work and monitoring behavior, but not orally instructing. Dr. Fischer further testified that the Petitioner did not actively check the students at the beginning for comprehension of her instructions, and did not explain to the students what was expected in their work. Expectations that Petitioner should have communicated to the students included the amount of time to spend on the task, the process to be used to obtain help, and how the students were supposed to work on particular tasks. Dr. Fischer concluded from his observations that the Petitioner did not adequately instruct students at the beginning of the class, and did not adequately instruct student activities during the class. The observation form, Respondent's Exhibit 6, contains additional areas thought by Dr. Fischer to be deficient in Petitioner's teaching. The form mentions a failure to make objectives in lesson plans more specific, activities matched to objectives, and methods of evaluation both made more specific and correlated with objectives and activities. He concluded that it was difficult to determine if lesson plans were followed due to vagueness. In one period, Dr. Fischer observed 50 percent of the students on task 60 percent or less of the time. With regard to behavior of students and professional attitude interacting with students, Dr. Fischer found that the Petitioner needed to be firmer, consistent, and interact in a way that defined what was expected, minimally involving other students. He found that the interactions with students were more confrontations than conversation, and statements were made to the entire class when only the behavior of a few was to be corrected. At the end of the two days in which observations were conducted, Dr. Fischer net with the Petitioner and discussed the contents of his evaluations contained in Petitioner's Exhibit 6. Next, Dr. Fischer developed a professional development plan, which is Respondent's Exhibit 7. The plan follows the topical categories contained in the observation form. The plan sets forth a number of goals to be accomplished by the Petitioner to remedy the matters criticized by Dr. Fischer in the observation form. Dr. Fischer discussed the plan with the Petitioner and scheduled another observation for December 1983. The professional development plan called for daily evaluation of each student's progress. The Petitioner found that daily evaluation was too time consuming and not effective, since students did not make enough progress each day to make evaluation meaningful, and also because there was not enough time each day to both instruct and evaluate each student. Transcript, 185-86. This was corroborated by Respondent's Exhibit 6, which indicates that a class period was about 60 minutes, and Petitioner had 13 students in the third period. While 13 students in a single class is a very small number compared to typical classrooms, it still allows perhaps 10 minutes at the beginning for general instruction and getting out equipment, 10 minutes at the end for equipment storage and summation, and only 180 seconds per student for the remaining 40 minutes in which to monitor behavior, instruct, observe, and evaluate. The Petitioner discussed with Ms. Cox the requirement of daily evaluation, and Ms. Cox told the Petitioner that she agreed that daily evaluation was not possible, but that the Petitioner should try to satisfy "them" (Dr. Fischer and Mr. Phillips) and do it that way for two or three weeks, and then when the period of Scrutiny was over, to go back to doing it the way she had done before. Transcript, pp. 185-86. (As testimony relating that Ms. Cox is fact said these things, the foregoing is not hearsay. To the extent that Ms. Cox's opinion is in the record to corroborate the Petitioner's own opinion that daily evaluation was impossible, it is hearsay, as such, may be relied upon as corroborative of direct evidence on the point). The professional development plan also called for the Petitioner to observe other teachers teaching laboratory science courses in "classes identified by the Principal." Respondent's Exhibit 7, p. 3. Apparently the Petitioner was given the name of one teacher in her own school who taught laboratory science (but not ISCS, since that program had been discontinued), but was not given the names of other teachers in other schools to observe as promised. Further, she was never told when she could be released from her classes to observe these teachers. Transcript, pp. 178-79. Thus, it was impossible for her, on her own, to leave her classes to follow up on these observations. (Dr. Fischer's testimony, which only asserts that "resources" of an identified nature were "suggested" does not contradict Petitioner's testimony. See transcript, p. 100). Other than the matters discussed in the last two paragraphs, the Petitioner was responsible, on her own initiative, to implement all other aspects of the professional development plan. The Petitioner did not ask Dr. Fischer for any help with implementation of the professional development plan, transcript, p. 106, but she did ask for help from Ms. Cox, transcript, p. 187. Dr. Fischer recognized that after a teacher had been evaluated and instructed on areas needing improvement, that the teacher should be afforded a period of time to implement the suggestions. Transcript, pp. 98-99. He estimated that a minimum of a month would be needed to afford a teacher a reasonable period of time to become more specific in plans for instruction, and would need two or three months for some aspects of classroom management. Transcript, p. 99. Other corrections, such as announcing a rule in class, he thought should require only a week to correct, and others, such as stopping fights immediately, should be implemented the next day. Transcript, pp. 98-99. To improve rapport with students, a teacher needed at least two months for implementation. Transcript, p. 99. Applying Dr. Fischer's expectations to the professional development plans, Respondent's Exhibit 7, the development plan consists almost entirely of goals for improvement that would require one to three months to correct. The professional development plan lists goals and objectives stated in broad terms falling within the categories discussed in paragraph 45 above: development of more specific lesson plans, general principles for improving classroom management, and for improving rapport with student. A few of the objectives of the development plan (delivery of instruction, paragraphs 4 and 5, classroom management, paragraphs 1 and 5) would probably be such that it would be reasonable to expect correction and implementation in a few days. But overall the development plan states that implementation of the various sections were to have been accomplished by either December 1, 1983 (five weeks) or January 1, 1984 (nine weeks). At some point between October 26, 1983, when the professional development plan was discussed with and signed by the Petitioner, and December 1983, the Petitioner again became ill due to her feet. The scheduled second observation thus did not occur in December, but occurred on "change-over" day in January, 1984. Change-over day is apparently the day when the second semester begins, and is a day when the skills of a teacher in explaining new material and setting new directions for a class are more extensively tested and required. While it is not a normal teaching day, it is a suitable day to observe a teacher's skills under stress. At the end of the observations that day, Dr. Fischer concluded that the Petitioner had not made significant improvement since his evaluations in October. He felt that some improvement had been made in lesson plans, but still was not satisfied that the plans were sufficiently specific. He gave no examples, however. He said he was still "not clear" on the relationship between the techniques used for evaluating student performance and the objectives for student performance on a given day. And he expressed continued concern for clarity of directions in the classroom and the amount of time students were expected to be on task. Transcript, p. 87. Dr. Fischer's evaluation in January 1984 was based solely upon the observations in the classroom made on that day, and was not based upon observations of or knowledge of the steps that the Petitioner took to improve during the interim. Transcript, p. 88. Dr. Fischer knew that the Petitioner was absent during the period from October 1983 to January 1984, but he did not know the exact number of days of such absence. Transcript, p. 100. Dr. Fischer testified that it would probably not make a difference in his January 1984 evaluation if Ms. MacPherson had been absent due to illness for the majority of the time from the date of the first observations and the beginning of the professional development plan. Transcript, p. 101. In both the October 1983 evaluations and the January 1984 evaluation Dr. Fischer concluded that the Petitioner was not an effective or a competent teacher. Dr. Fischer was of the opinion that he had had an adequate amount of time to observe the Petitioner to develop the above opinion, but that "normally" he would have hoped to have had more time. The students in the Petitioner's ISCS classes were average and below average in skills and intelligence. Ms. Cox did not think that this factor was relevant to her assessment of Petitioner's teaching skills. Dr. Fischer felt Use factor was relevant, and was of the opinion that such students could be taught effectively only by a "highly skilled teacher." Transcript, p. 105. Ms. Cox's failure to consider the skill level of the students in the ISCS science course, with its total emphasis upon learning through self- discipline and self-motivation, severely undermines her credibility as an evaluator of the Petitioner. Dr. Fischer's opinion that only a highly skilled teacher could teach average or below average students in the ISCS science program is accepted as credible. Continuity of teaching by the same teacher is important for proper instruction of students. Unless the teacher is present continuously with the same students, he or she has no adequate way to judge the progress of the student, and from that evaluation of progress, tailor future instruction. Continuity of instruct ion was especially important in the ISCS program because students were not lectured and given the same homework, followed by testing, but progressed at different rates based upon individual choice. With respect to the school years 1981-82, 1982-83, and 1983-84, based solely upon the absences of the Petitioner, it was Dr. Fischer's opinion that the Petitioner could not deliver a minimum educational experience to her students. Transcript, pp. 89-90. Like Ms. Cox, this opinion was not based upon actual testing of students who were taught by Ms. MacPherson in those years, but was based rather upon inferences drawn from the absences themselves, coupled with Dr. Fischer's own expertise. Mr. Herrick also addressed himself to the issue of the Petitioner's absences. He testified that due to the great length of the Petitioner's absences, he had to use several substitutes since there was a rule limiting the time that one substitute could be used. He testified that use of several substitutes resulted in substitutes not always familiar with the materials and student progress, and that he passed by the classroom frequently and could see that the class was "rather chaotic." Transcript, p. 148. Hut Mr. Herrick did not attribute this fact to a lack of skill by Ms. MacPherson: he stated that it would happen to any teacher who had been absent so long. Id. Due to the fact that Dr. Fischer and principal Phillips were faced with a deadline of February 1984 in which to decide whether to recommend to the school board that the Petitioner be returned to annual contract, he and others had to make a decision shortly after the January 1984 observations. Transcript, p. 104. On February 29, 1984, the Superintendent, A. J. Henriquez, wrote to the Petitioner stating that he would recommend to the school board that the Petitioner be returned to annual contract for the school year 1984-1985. Respondent's Exhibit 9. The purpose of returning the Petitioner to annual contract would be to provide her time to improve, and to terminate her if she did not improve. Transcript, p. 107. The Respondent would be legally free to terminate a teacher on annual contract without cause simply by failing to renew the annual contract at the end of one year. In the two previous years, Mr. Phillips wrote to the Petitioner warning that he might recommend that she be returned to annual contract. On April 30, 1982, Mr. Phillips wrote suggesting medical retirement and warning he would recommend return to annual contract if the Petitioner's attendance did not improve. Respondent's Exhibit 4. On March 14, 1983, Mr. Phillips stated that he planned to recommend that Ms. MacPherson be returned to annual contract. Respondent's Exhibit 8. This recommendation, however, was held in abeyance for another year. Respondent's Exhibit 5. In both 1982 and 1983, the basis for the proposed return to annual contract was solely Petitioner's attendance problems, and was not based in upon any claim that the Petitioner lacked teaching skills. In view of the foregoing history of contemplation of return of the Petitioner to annual contract, it is very likely that if the Petitioner is returned to annual contract, her contract will not be renewed at the end of the annual term. Mr. Phillips signed the Petitioner's annual evaluation for the school year 1983-84. The evaluation does not rate the Petitioner unacceptable in any area, but rates her as needing improvement in preparation and planning, classroom management, techniques of instruction, assessment techniques, professional responsibility, school contributions, and personal qualities. The Petitioner was rated acceptable in knowledge of subject matter, teacher-student relationships, and relationships with staff and parents. Evidently due to the fact that no one provided Petitioner with a copy of the evaluation or asked her to sign it, and because the Petitioner was not present at school after school ended that year, the Petitioner did not see the evaluation, and thus it was not then (apparently) discussed with her. Transcript, p. 34. During the 1984-85 school year, the Petitioner took leave of absence without pay to try to heal her feet completely. The last surgery was in October 1984, and since then her feet have been healing well, without flare-up. The Petitioner testified that her feet were now completely healed, and she would be able to walk around a classroom without endangering her feet or her health. She further testified that her doctor felt her feet were healed. Transcript, p. 189. (While this is hearsay, it is corroborative of the Petitioner's own testimony concerning the condition of her own feet, and may be relied upon for that purpose.) The Respondent did not introduce any rebuttal or contradictory evidence as to the current condition of Petitioner's health. The Petitioner will have a lower salary if the Respondent changes her contract from continuing to annual status. The parties have proposed a number of findings of fact, many of which have been considered and are a part of the findings above. The following proposed findings of the parties are considered separately: Finding number 20 proposed by the Petitioner is rejected in part. Mr. Burney's opinion as to the Petitioner's competence as a teacher is rejected for lack of a predicate to show that Mr. Burney had observed the Petitioner as a teacher and had the competence to form such an opinion. To the extent that his opinion was based upon conversations with Mr. Herrick and Mr. Roberts, findings have already been made as to their opinions, and Mr. Burney's reiteration of what they said is cumulative and adds nothing to the record. See also ruling at page 123, transcript. The Petitioner's failure to remember what the initials "ISCS" stood for, which is Respondent's proposed finding 6, is largely irrelevant. That failure might have been relevant had it been the only such event in the record. But since counsel for the school board, Ms. Cox, and Dr. Fischer appear to also disagree as to what the letters mean (compare Respondent's proposed finding 6; transcript, p. 42; and Respondent's Exhibit 7, p. 1), the only finding that could possibly be justified is that there is disagreement among the witnesses who were professionally involved with the administration, evaluation, and delivery of the ISCS curriculum. Finding number 20 proposed by Respondent concerning complaints by parents and students is rejected. No parents or students testified. Neither did Principal Phillips. This is hearsay upon hearsay. Respondent's proposed finding 39 proposes a finding that Ms. Cox rendered an opinion that Petitioner was not providing a minimal educational experience for students "based upon her observations and experience," citing the transcript, page 45. Ms. Cox did not respond based upon her "observations." The question asked was "in light of your experience and background and education." Thus, the opinion, as discussed above, was a generalized opinion based solely upon a stated general number of absences. Ms. Cox was not asked to render an opinion based upon her observations of Ms. MacPherson, and the proposed finding is rejected to that extent. With respect to Respondent's proposed finding 46, Petitioner did testify that most students who missed from sixty to seventy-four days out of a school year of 180 days would not receive a minimum educational experience. The Respondent did not show, however, whether the absence of Ms. MacPherson was the equivalent to total absence of the students themselves for those days, and thus the finding is only of marginal relevance. It has been the intent of the Hearing Officer to explicitly comment upon every proposed finding of fact unless such proposed findings are cumulative, subordinate, or unnecessary. If a finding is immaterial, it is the intent of the Hearing Officer to have explicitly identified such finding as immaterial.
Recommendation For these reasons, it is recommended that a final order be entered that good and sufficient reasons do not exist to return the Petitioner, Ann E. M, to annual contract. DONE and ENTERED this 10th day of May, 1985, in Tallahassee, Leon County, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1985. COPIES FURNISHED: Thomas W. Young, III, Esquire General Counsel FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Michael Casey, III, Esquire 2 South Biscayne Boulevard Suite 1800 Miami, Florida 33131 A. J. Henriquez, Ph.D. Superintendent The School Board of Monroe County, 242 White Street P.O. Drawer 1430 Key West, Florida 33040-1430 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner, Monroe County School Board, has “just cause” to terminate the employment of Respondent, Maryeugene E. Dupper, as a teacher for Petitioner.
Findings Of Fact The Parties. Petitioner, Monroe County School Board (hereinafter referred to as the “School Board”), is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Monroe County, Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Respondent, Maryeugene E. Dupper, has been a classroom teacher with the School Board since August 2000. She began her employment as a substitute teacher and was subsequently employed as a full-time teacher at Poinciana Elementary School (hereinafter referred to as “Poinciana”), where she worked with profoundly handicapped students. She remained at Poinciana through November 2006. Throughout her employment at Poinciana, Ms. Dupper received good performance evaluations, although they did decline over time. On November 17, 2006, Ms. Dupper transferred to Gerald Adams Elementary School (hereinafter referred to as “Gerald Adams”), where she taught a Pre-K Exceptional Student Education or ESE class for the first time. At the times pertinent to this proceeding, Ms. Dupper was employed as a teacher pursuant to a professional services contract. 2006-2007 School Year. From the beginning of her employment at Gerald Adams, Ms. Dupper evidenced difficulty implementing the curriculum in a meaningful way. In particular, Ann Herrin, Principal at Gerald Adams, whose testimony has been credited, found that Ms. Dupper was having a difficult time establishing the scope and sequence of lessons and effective classroom management techniques. Among the deficiencies Ms. Herrin found with Ms. Dupper’s performance was the lack of progress notes for her students. Ms. Dupper failed to keep any notes indicating that she had performed any formal evaluation of her students. When Ms. Herrin asked Ms. Dupper how she could tell whether her curriculum was successfully reaching each student, Ms. Dupper simply replied that “I am a teacher and I just know.” After conducting two formal observations and a number of informal observations of Ms. Dupper, Ms. Herrin, in her 2006- 2007 annual teacher evaluation concluded that Ms. Dupper “Needs Improvement” in Management of Student Conduct, Instruction Organization and Development, Knowledge of Subject Matter, and Evaluation of Instructional Needs. Ms. Herring used a Teacher Annual Assessment Plan Comprehensive Assessment Form for this evaluation. Overall, Ms. Herrin rated Ms. Dupper as “Needs Improvement” noting that “Curriculum content is lacking – making the learning environment unacceptable and unmanageable.” Subsequent to Ms. Herrin’s evaluation of Ms. Dupper, Ms. Herrin issued a Professional Development Plan for Ms. Dupper dated May 30, 2007. Ms. Dupper, who had been provided assistance throughout the school year by Gerald Adams administrative staff, was offered guidance in the Professional Development Plan intended to improve her performance as a teacher. That guidance is accurately described in paragraph 9 of the School Board’s Proposed Recommended Order. At the beginning of the 2007-2008 school year, the School Board instituted a new curriculum for use by Pre-K teachers. That curriculum, the Galileo Curriculum (hereinafter referred to as “Galileo”), is a computer-based program which includes lessons plans and benchmarks and goals for teachers to use in assessing student performance. Although Galileo includes a means for teachers to keep track of student progress, Galileo is not a student evaluation instrument intended for use in “testing” student progress. 2007-2008 School Year. During the 2007-2008 school year, Ms. Dupper was observed on October 11, November 8, and December 18, 2007, and on March 20 and 26, and May 6 and 22, 2008. Despite efforts to provide Ms. Dupper with professional assistance and making several changes in the teacher’s aide assigned to assist her, Ms. Dupper’s performance remained inadequate. Ms. Dupper was provided with assistance by teachers at Gerald Adams, including a “mentor," and by the head of the Exceptional Student Education department and an Exceptional Student Education Program Specialist. Ms. Dupper was observed on one occasion by Ms. Herrin when every student in Ms. Dupper’s “learning center” left the area while she continued to “teach.” One student stood on a table dancing, uncorrected by Ms. Dupper. On two occasions, a student left Ms. Dupper’s classroom altogether and were taken back to Ms. Dupper’s classroom before she realized they were gone. On nine different occasions during the 2007-2008 school year, Ms. Herrin requested a discipline plan from Ms. Dupper. No plan was ever provided. Ms. Dupper’s use of Galileo was minimal during the 2007-2008 school year. The system contained a checklist, by domain or skill, which was intended for use by a teacher in determining whether each student was learning the listed skills. Ms. Dupper rarely used the system, however, only logging into the Galileo system 19 times. Nine of those times were on the same day and four were on another day. Other Pre-K teachers utilized Galileo an average of 100 times more than Ms. Dupper. Ms. Herrin’s 2007-2008 annual evaluation of Ms. Dupper, dated April 4, 2008, found that her performance had declined and was “Unsatisfactory.” Ms. Herrin found Ms. Dupper “Unsatisfactory” in Management of Student conduct, Instruction, Organization and Development, Knowledge of Subject Matter, and Evaluation of Instructional Needs. Ms. Dupper’s performance in Professional Responsibilities also declined due to her failure to complete Individual Education Plans on time, incomplete and inaccurate progress notes, and her failure to follow suggestions for improvement. The 90-Day Probation Period. As a result of her continuing decline in performance, Ms. Dupper was informed on April 9, 2008, that she was being placed on a 90-day probation period pursuant to Section 1012.34, Florida Statutes. She was informed that her deficiencies included the inability to manage student conduct, lack of lesson planning, inadequate knowledge of subject matter, lack of student progress evaluation, and inadequate professional responsibility. Ms. Dupper was given suggestions for how to improve her deficiencies over the summer break, suggestions which Ms. Dupper did not follow. While on probation, Ms. Dupper was also offered an opportunity to transfer to another school, an offer which was not accepted. On June 6, 2008, at the request of Ms. Dupper’s union representative, a second annual evaluation was performed by Ms. Herrin. While Ms. Herrin found some improvement, she found that, overall, Ms. Dupper’s performance was “Unsatisfactory.” Ms. Dupper was on probation during the 2007-2008 school year a total of 62 days, excluding holidays and “professional days.” During the summer months between the 2007-2008 and 2008-2009 school years, Ms. Dupper, who was not teaching, failed to follow any of Ms. Herrin’s suggestions for personal improvement opportunities. The first day of school for the 2008-2009 school year and the commencement of the 90-day probation period was August 11, 2008. Ms. Herring formally observed Ms. Dupper during the third week of September 2008, and on October 2, 2008. Assistant Principal Willis observed Ms. Dupper on October 8, 2008. Ms. Dupper’s performance and use of Galileo continued to be unsatisfactory, despite continuing efforts of the administration staff to assist her, as more particularly and accurately described in paragraphs 30 through and including 35 of Petitioner’s Proposed Recommended Order. Additionally, Ms. Dupper continued to fail to prevent her very young students from leaving the classroom without her knowledge. Excluding non-school days, Ms. Dupper was given more than 120 days from the commencement of her probation period until her probation period was considered ended in October 2008. By the middle of October 2008, Ms. Herrin concluded that Ms. Dupper had not evidenced satisfactory improvement in her teaching skills. Ms. Herrin’s conclusions concerning Ms. Dupper’s unsatisfactory performance as a teacher, which were not contradicted, are credited. The Decision to Terminate Ms. Dupper’s Employment By letter dated October 30, 2008, Ms. Herrin recommended to Randy Acevedo, Superintendent of the Monroe County School District, that Mr. Acevedo review documentation concerning Ms. Dupper’s 90-day probation period and make a recommendation pursuant to Section 1012.33, Florida Statutes, concerning her continued employment. Ms. Herrin provided Mr. Acevedo with the following information for his review: Attached please find a copy of the professional development plan and this year’s observations conducted by Assistant Principal, Grace Willis and me. The remaining documentation for the 2007 and 2008 school years have been submitted to personnel. I have also attached the follow up documentation, the review of the 90-Day plan and the observations that outline the deficiencies that still remain. This teacher’s performance remains unsatisfactory. Petitioner’s Exhibit 7. Missing from the information provided for Mr. Acevedo’s consideration was any information concerning student performance assessed annually by state or local assessment. By letter dated November 14, 2008, Mr. Acevedo informed Ms. Dupper that he was going to recommend to the School Board at its December 16, 2008, meeting that her employment as a teacher be terminated. By letter dated November 18, 2008, Ms. Dupper requested an administrative hearing pursuant to Section 120.57, Florida Statutes, to challenge her anticipated termination of employment. The School Board accepted the Superintendent’s recommendation at its December 16, 2008, meeting, suspending Ms. Dupper without pay, pending a final determination of whether her employment should be terminated. Student Performance Assessment. The Florida legislature has specified in Section 1008.22, Florida Statutes, a “Student assessment program for public schools.” This assessment program is to be considered in evaluating student performance as part of a teacher’s evaluation. The assessment program, however, does not apply to Pre-K students. “FLICKRS” is a state assessment tool intended for use in evaluating Kindergarten students. FLICKRS allows schools to evaluate whether a Kindergarten student is actually ready for Kindergarten-level work. FLICKRS is not utilized by the School Board to evaluate the progress of Pre-K students. The School Board has not developed any means of annually assessing the performance of Pre-K students. As a consequence, the decision to terminate Ms. Dupper’s employment by the School Board was not based upon any annual assessment of her students’ performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order: (a) dismissing the charges of the Administrative Complaint; (b) providing that Ms. Dupper be immediately reinstated to the position from which she was terminated; and (c) awarding Ms. Dupper back salary, plus benefits, to the extent benefits accrued during her suspension, together with interest thereon at the statutory rate. DONE AND ENTERED this 22nd day of July, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 2009. COPIES FURNISHED: Scott Clinton Black, Esquire Vernis and Bowling of the Florida Keys, P.A. 81990 Overseas Highway, Third Floor Islamorada, Florida 33036 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Randy Acevedo, Superintendent Monroe County School Board 241 Trumbo Road Key West, Florida 33040-6684 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Respondent's continued employment with the Dade County Public Schools, as set forth in minutes of the School Board for October 19, 1977.
Findings Of Fact During the 1975-1976 and 1976-1977 academic school years, Respondent was an employee of the Petitioner as a teacher at the Richmond Heights Junior High School. (Stipulation) By order of the State Board of Education, dated September 20, 1977, the teaching certificate of Respondent, Department of Education Number 3436, was suspended for a period of two years. The matter is currently being appealed to the First District Court of Appeal. (Petitioner's Exhibit 1, Stipulation) On October 19, 1977, Respondent was suspended without pay from his position by Petitioner due to the suspension of his teaching certificate by the State Board of Education. On October 31, 1977, Respondent requested a hearing in the matter. Petitioner provided Respondent with formal notice of charges on December 13, 1977, seeking his dismissal from employment with the school system. Respondent became a teacher in 1937 and has been employed in that capacity by Petitioner since 1961. He testified at the hearing to the effect that, in his opinion, the present proceedings are improper in that the action by the State Board of Education was premature and should not have been taken until the charges upon which such action was based had been considered by Petitioner in administrative proceedings. Respondent sought to introduce character testimony in his behalf by a number of witnesses, but upon objection by Petitioner, such testimony was not permitted by the Hearing Officer as it would be irrelevant to the proceedings. The proffered testimony would have shown that the witnesses had all known the Respondent for a lengthy period of time and that he is a dedicated employee of the school system who has served his community and church as an example for students. (Testimony of Anders, Respondent)
Recommendation That Respondent, Raphu S. Williams, be dismissed from employment as a teacher by the School Board of Dade County, Florida, under the authority of Section 231.36(4), Florida Statutes. DONE and ENTERED this 18th day of April, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jesse McCrary, Esquire Dade County Public Schools Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132 Elizabeth DuFresne, Esquire One Biscayne Tower Suite 1782 Miami, Florida 33131 Phyllis O. Douglas, Esquire Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132
The Issue Whether respondent's teaching contract should be renewed for school year 1995-96.
Findings Of Fact Based on all of the evidence, the following findings of fact are determined: Background In this proceeding, petitioner, Suwannee County School Board (Board), seeks to terminate respondent, Lallah P. Singh, a teacher, on the ground his classroom performance in school years 1993-94 and 1994-95 was unsatisfactory. In doing so, petitioner relies upon Section 231.36(3)(e), Florida Statutes, which authorizes a school board to terminate an employee with a professional services contract (PSC) when that employee has an unsatisfactory performance rating for two consecutive years. This proceeding represents the first occasion on which the Board has utilized the statute for a PSC teacher. Respondent, who has been employed in the Suwannee County school system since December 1977, is certified as a teacher in the areas of biology and mathematics for grades 6-12. A native of India, he holds the equivalent degree of a doctor in veterinary medicine from a university in that country. He has also obtained a master's degree in veterinary science in this country and is certified as an education specialist in mathematics. Until school year 1993-94, respondent was employed in a variety of positions, including a regular classroom teacher (1977-86), a home study teacher (1987-89), and an alternate education teacher (1990-92). During school year 1993-94, respondent was assigned to the Branford Pre K-12 School in Branford, Florida where he taught the in-school suspension (ISS) class. That class is made up of high school level students suspended from their regular classes for disciplinary reasons. The assignment required that respondent maintain discipline and assist students with work assigned by their regular teachers. Based on observations conducted by his principal during the school year, respondent received an unsatisfactory evaluation for his classroom performance. He was notified of these deficiencies in writing and was told that such deficiencies must be corrected by the end of the following school year, or else he would face possible non-renewal of his contract. For school year 1994-95, respondent was reassigned to an ISS classroom four periods per day but was also required to teach a general science class one period per day. During that year, respondent was observed by his principal in the general science class on four occasions to determine if the deficiencies noted in the prior year had been remediated. While most of the earlier deficiencies were eventually corrected, respondent was still unsatisfactory in one performance area noted in the prior year, as well as two other areas, and his performance was accordingly deemed to be unsatisfactory. On May 15, 1995, he was notified that his contract would not be renewed. By letter dated May 19, 1995, respondent requested a hearing to contest the Board's action. Although Section 231.36(3)(e)4.b., Florida Statutes, requires that the hearing be scheduled within 45 days of receipt of the written appeal, the parties have waived this requirement by requesting hearing dates beyond that timeframe. As clarified by his counsel, respondent generally contends the Board erred in the termination process by (a) providing him untimely and insufficient notice, (b) performing an inadequate evaluation, and (c) offering him inadequate assistance to correct his deficiencies. He asks for reinstatement of his professional services contract, as well as back pay. Events Leading up to School Year 1993-94 Around 1982, the legislature amended Section 231.36(3), Florida Statutes, to create a professional services contract under which teachers could be employed. Prior to that time, teachers not on annual contract status were employed under what was known as a continuing contract. Both a PSC and a continuing contract are considered a form of tenure for public school employees. After the new law became effective, teachers employed under a continuing contract were given the option to convert to a PSC. The advantage to a PSC is that if a teacher is cited for unsatisfactory performance in a given year, he or she has the following year in which to remediate those deficiencies. If the deficiencies are not remediated in the second year, a school board can change the teacher to annual contract status and decline to renew the teacher's contract. This procedure contrasts with the continuing contract process which, after an unsatisfactory rating is given but is not remediated by the teacher, allows a school board to change the teacher to annual contract status and not renew the contract at the end of any given year. In school year 1991-92, respondent was still employed under a continuing contract. When he received an unsatisfactory evaluation, and was threatened with the possibility of being changed to an annual contract and not renewed, he consulted with a teacher's union field representative, Richard E. Layer, on his procedural and substantive rights. During their discussions, the two talked about whether respondent should remain on a continuing contract or switch to a PSC. According to Layer, he explained to respondent "how the statute (governing a PSC) worked," advised him that a PSC offered more job security than a continuing contract, and recommended respondent switch to a PSC since this would give him two years in which to correct any deficiencies that might occur in the future. Layer added that after their conversation, respondent "knew exactly what the (PSC) provided." Based on Layer's advice, in April 1992 respondent requested that he be converted to a PSC. This was done for school year 1992-93, and he remained in that status until his contract was terminated in May 1995. The Evaluation Process Generally When evaluating classroom performance in both school years 1993-94 and 1994-95, the Board used standard evaluation forms developed by representatives of the Board and teacher's union. The evaluation, which must be performed at least once a year for teachers having a PSC, is conducted by the teacher's immediate supervisor, who in this case was the school principal, Melvin McMullen. McMullen had assumed that position during the latter part of school year 1992-93, had received special training for conducting evaluations, and was required to perform evaluations for over fifty teachers in both school years 1993-94 and 1994-95. The evaluation process for a teacher on a PSC consists of at least one classroom evaluation during a given school year. The results of the first evaluation are recorded by the evaluator on an assessment form. Within five days after the observation, a principal-teacher conference must be held for the purpose of reviewing the outcome of the observation. At that meeting, the teacher must sign the form, which includes a written admonition that "(f)ailure to correct the area(s) marked unacceptable may lead to your dismissal or non- renewal." Subsequent evaluations during the year, if any, are also recorded by the evaluator on an assessment form. For all evaluations, the teacher is given an acceptable ("A") or unacceptable ("U") rating for each evaluated area. Although the assessment forms used herein changed in some minor respects from school year 1993-94 to school year 1994-95, their substance was essentially the same. Each assessment form for a classroom teacher contains six overall performance standards, including planning, teaching procedures, classroom managment, presentation and knowledge of subject matter, assessment techniques and personal characteristics and professional responsibilities. Under the performance standards are found a total of twelve "indicators." Finally, within the indicators are found a "checklist of observable teaching behaviors," consisting of twenty-seven behaviors, each requiring a rating of "U" or "A." If any teaching behavior is given a "U," the indicator likewise requires a rating of "U." If an indicator is marked "U," the performance standard is also scored unacceptable. A total score is then assigned to the teacher, with one point given for each indicator with an "A," and the highest score being twelve. Anything less than a twelve is considered unsatisfactory and, if not corrected, may result in the teacher's dismissal. If the first observation of a PSC teacher results in an unsuccessful rating in any area, a "level-one" assistance plan is instituted by the principal, which consists of a principal-teacher conference to discuss the deficient areas, suggestions on how to correct the deficiencies, and a timeframe to correct the substandard performance. If insufficient progress has been made by the end of the timeframe, at the option of the assessor, the level-one assistance process can be repeated or a "level-two" assistance plan can begin. The latter level of assistance generally mirrors the assistance given during level-one but the assessor must also notify the superintendent that level-two has been initiated. If the deficiencies are still not corrected by the end of the school year, the superintendent is notified, and the teacher is again placed on notice that he must correct those deficiencies during the following school year or suffer the risk of being reverted to an annual contract status and not being renewed. Finally, during the subsequent school year, the same observations are conducted, and level-one and two assistance plans are implemented if deficiencies are observed. If remediation does not occur by the end of the second school year, the superintendent has the authority to recommend that the school board decline to renew the teacher's contract. School year 1993-94 Respondent was first evaluated by principal McMullen on February 23, 1994. He received a total credit of 10 out of 12 possible points. For the indicators "Recognizes and provides for individual differences" and "Demonstrates effective classroom facilitation and control," respondent received a "U." A conference was held by McMullen and respondent the same day, at which time respondent was given a form entitled "Related Work Performance Form (Appraisal III)." It contained not only an explanation of unacceptable areas and recommended procedure for correction, but also a notation that respondent had "2 weeks from today to demonstrate acceptable teacher corrective action." On March 14, 1994, respondent was again evaluated by principal McMullen. Although McMullen noted that "improvement" had occurred since the earlier evaluation, respondent received a credit of 11 out of 12 points. Indeed, he was still deficient in the area of "Demonstrates effective classroom facilitation and control." At a conference held the same day, respondent was given an explanation of his unacceptable area, a recommended procedure for correction, and the following timeframe for improvement: "2 weeks approximately from 3/14/94.". On March 15, 1994, respondent was given a lengthy list of resource materials available for use in correcting his deficiencies, including videos, journals and publications. In addition, he was given written instructions for use of the materials. Based on the unsatisfactory performance rating, principal McMullen sent the following letter to respondent on March 25, 1994: This letter is to notify you that you have demonstrated unsatisfactory performance on the Final Observation/Assessment Form (Appraisal I), with deficiencies noted in the folowing areas: Classroom Management Number 2: Maintains rules of conduct Number 3: Maintains instructional momentum These deficiencies must be corrected by April 1, 1995. I am requesting that your employ-ment be continued an additional year in order to provide you assistance. If you wish to discuss this matter with me further, please schedule an appointment through Mrs. Cannon. I look forward in continuing to work with you on classroom management issues. Respondent acknowledged receiving a copy of the letter the same day. On March 31, 1994, principal McMullen wrote the following letter to superintendent Blaylock: Dr. Lallah Singh has been notified of unsatis- factory performance on the Final Assessment Form with deficiencies noted in the following areas: Classroom Management Number 2: Maintains rules of conduct Number 3: Maintains instructional momentum I request that his employment be followed for an additional year to allow the opportunity to correct these deficiencies by April 1, 1995. Whether respondent received a copy of this letter is not of record. Although the March 14, 1994 evaluation was ostensibly used for personnel decisions that year, on May 6, 1994, a third formal assessment of respondent's classroom performance was conducted by principal McMullen. On that date, he received a credit of 11 out of 12 points. Even so, respondent was still deficient in "Classroom Management" and the related indicator based on unacceptable ratings given for the following observable teaching behaviors: "Maintains rules of conduct" and "Maintains instructional momentum." Thus, no matter whether the March or May evaluation was used, at the end of the first school year in question, respondent's only noted deficiency continued to be for classroom management and the related indicator, "Demonstrates effective classroom facilitation and control." On May 10, 1994, respondent and principal McMullen met to discuss respondent's latest assessment. Although McMullen noted that respondent had made "progress in meeting recommended procedures to help correct areas of concern," he noted that his level of improvement was "still not acceptable" and that respondent must continue the earlier suggestions for improving his performance. The two agreed to meet during the next school year's pre-planning period to discuss a plan of improvement for that year. This was embodied in a letter sent by McMullen to respondent on May 11, 1994. Sometime after receiving this notification, respondent contacted his local teacher's union representative, Willie Veal, Jr., for advice and assistance. On April 21, 1994, acting on the superintendent's recommendation, the Board reemployed respondent for the following year and placed him in a status known as "Professional Services Contract continuation (2nd year)," which is the Board's terminology for the "subsequent year" described in section 231.36(3)(e). Respondent did not receive a copy of this action. On June 7, 1994, however, respondent received a letter from the superintendent advising that the Board had approved him for a PSC for school year 1994-95. School year 1994-95 On August 19, 1994, respondent, union representative Veal, and principal McMullen met to discuss respondent's teaching status for the 1994-95 school year. At that meeting, respondent learned he would be reassigned to ISS but would also be required to teach general science one period per day. Although respondent says general science was not his strongest suit, which was mathematics, it was a subject within his certified area of biology. He also understood that his contract was subject to being non-renewed if he did not correct his deficiencies during the school year. This was confirmed by witness Veal. The following letter was given to respondent on August 29, 1994, to memorialize the substance of the meeting: Thank you for meeting with me while Mr. Veal had a moment last Friday (August 19th., 1994) to generally discuss plans for teaching improvement for the 1994-95 school year. As we discussed, I believe the opportunity to teach a General Science class and Mr. Brown spending two periods a days (sic) with I.S.S. students (doing Drop-Out Prevention counseling) will be two positive techniques to aid improvement as noted on the Appraisal II Form from last year. You and I will meet again soon, to review matters particular to unacceptable areas noted on the May 6th., 1994 Observation/ Assessment. We will then outline other suggestions, techniques and/or personnel that might assist this teacher improve- ment process. On November 15, 1994, respondent was sent the following letter by principal McMullen: As we discussed at our 8/25/94 (sic) meeting, and briefly the other day, we need to meet this coming week to discuss items noted on the Appraisal II Form. We will review the items which were unacceptable on the 5/6/94 Observation/Assessment Form. Can a meeting between you and I be set up for Tuesday afternoon, about 2:30 in your room? Please let me know. Pursuant to this letter, a meeting was held on November 20, 1994. During the meeting, principal McMullen further discussed respondent's deficient areas in the prior year and suggested ways to improve them. He also recommended that informal observations be made in an effort to prepare respondent for his formal observations during the following months. While respondent contends this assistance was begun too late in the school year to be of any meaningful value, it was rendered more than four months before the final evaluation on March 29, 1995. Then, too, respondent's most persistent problem continued to be in the area of classroom management, for which assistance to remedy that problem had been offered throughout the previous year. On December 12, 1994, principal McMullen conducted the first of four observations of respondent's performance in his general science classroom. That classroom, rather than the ISS class, was chosen out of fairness to respondent in order to assess him in a controlled classroom environment. On that day, respondent received a score of 7 out of 12 possible points. More specifically, he received an unacceptable rating for the following indicators: "Uses instructional materials effectively," "Displays skills in making assignments," "Recognizes and provides for individual differences," "Demonstrates effective classroom facilitation and control," and "Presents subject matter effectively." The following day, or December 13, 1994, petitioner was placed in the level-two assistance process. He was given a detailed explanation of unacceptable areas of performance observed at the December 12 evaluation and a lengthy list of suggestions on how to correct each of those deficiencies. Late on the morning of the same day, or December 13, 1994, principal McMullen walked by the building in which respondent taught and "noticed (him) sleeping at (his) desk" with his shoes off and leaning back in his chair. There were four students in his classroom at the time. Respondent was given a letter confirming this incident and told that if he had a medical reason which caused him to sleep to provide the principal with a doctor's note by December 16, 1994. Respondent provided a letter from his doctor the following day in which the physician listed four medications being taken by respondent, none of which would cause him to sleep. However, the physician noted that respondent "occasionally" took an over the counter cough syrup "that may cause drowsiness." Whether respondent was taking a cough syrup that day is not of record. This incident is relevant to the charge that respondent did not properly manage his classroom. On January 24, 1995, principal McMullen again performed an assessment of respondent's classroom performance. On this occasion, respondent received a score of 10 out of a possible 12 points. He received unacceptable ratings for the following indicators: "Demonstrates effective classroom facilitation and control" and "Presents subject matter effectively." On January 27, 1995, and pursuant to the level-two assistance program, respondent was again given a written, detailed explanation of his unacceptable areas and a list of recommended procedures for correction. He was told that he would be reevaluated on or about February 17, 1995. Finally, respondent was given the following written notice: Failure to satisfactorily correct all area(s) of unacceptable performance within the expected timeframe may result in returning the teacher holding a CC/PSC contract to annual contract status. If area(s) of unacc- eptable performance are not satisfactorily corrected during the second year, the teacher may be recommended for non-renewal. On February 21, 1995, another classroom observation was conducted by principal McMullen. That day, respondent received a score of 10 out of 12 possible points. Respondent again received unacceptable ratings for the following indicators: "Demonstrates effective classroom facilitation and control" and "Presents subject matter effectively." At a conference the same date, respondent was advised in writing that the following administrative assistance would be rendered: "Arrange conference time with fellow teachers/administrators, help secure resource materials and arrange for time to visit (illegible), etc." Respondent was also told that "(b)y April 5th (approximately six weeks), 1995 all observed/assessed areas should be scored acceptable." In addition, respondent was given a more detailed explanation of his unacceptable areas and recommended procedures for correction of those areas. On March 13, 1995, principal McMullen acknowledged receipt of certain corrective measures which respondent proposed to use at his next observation. These corrective measures were considered by principal McMullen at the next observation. A final observation of respondent occurred on March 29, 1995. Respondent received three unacceptable ratings which resulted in a score of 9 out of 12 points. On that occasion, he received unacceptable ratings for the following indicators: "Uses appropriate motivating techniques," "Demonstrates effective classroom facilitation and control," and "Presents subject matter effectively." The second noted indicator, "Demonstrates effective classroom facilitiation and control," was the same indicator for which respondent had received an unacceptable rating the prior year. On March 30, 1995, principal McMullen sent the following letter to respondent: This letter refers to our meeting today on your 3/29/95 Observation/Evaluation. Having gone over that with you, I wanted to highlight the fact that you still have three areas deficient in evaluation of your classroom teaching. These areas are noted on your evaluation form. Instructional recommendations are due to the Superintendent April 1, 1995. Due to this being the second year in the process to correct noted deficiencies and those continue, I have no choice but to recommend non-renewal at that time. Respondent acknowledged receiving a copy of the letter the same date. On March 31, 1995, principal McMullen notified the superintendent by letter that he could not recommend respondent for the 1995-96 school year term given his failure to correct the deficiencies. The superintendent accordingly recommended to the school board on April 21, 1995, that respondent not be rehired for the following school year. The recommendation was accepted by the school board at its April 25, 1995 meeting. On May 15, 1995, the superintendent advised respondent by letter that his contract was not being renewed for the following school year. This notice prompted respondent to request a formal hearing to contest the school board's proposed action. Was There Adequate Notice, Evaluation and Assistance? Notice Respondent contends that the school board erred by giving him inadequate and untimely notice of its actions. At the same time, respondent asserts that he was unaware of the consequences of the unsatisfactory performance ratings in school year 1993-94. He claims that, before the middle of school year 1994-95, no one ever specifically told him that his employment status was in jeopardy if his deficiences were not corrected by the following school year. Respondent's contention that he was unaware of the consequences of the 1993-94 unsatisfactory rating is not deemed to be credible. As early as 1992, respondent was given an explanation on how section 231.36(3)(e) "worked" by a field representative of the teacher's union, and according to the representative, "knew exactly what the law provided." Based on that advice, he switched from a continuing contract to a PSC since he had been told that this would give him two years to correct deficiencies before his employment could be terminated. Beginning in the summer of 1994, he was also represented by the president of the Suwannee County teacher's union, Willie Veal, Jr. At a meeting with Veal and principal McMullen in August 1994, respondent was told that he must correct his deficiencies before the end of the school year or face non- renewal. In addition, respondent had been through a similar evaluation process several years earlier. In 1992, he received an unsatisfactory performance rating and was told that unless the deficiencies were corrected, his contract might be terminated. In that case, however, the deficiencies were corrected, and he retained his tenure under a PSC. Finally, each of the many assessment forms that respondent signed during this process specifically noted that his "(f)ailure to correct the area(s) marked unacceptable may lead to (his) dismissal or non-renewal." Therefore, the totality of the evidence belies respondent's contention that he did not understand that this could happen. Statutory requirements The school board did not strictly follow all requirements of the law in terminating respondent. For example, the law requires that the superintendent provide the teacher in writing "no later than 6 weeks prior to the end of the postschool conference school period, of performance deficiencies which may result in termination of employment, if not corrected during the subsequent year of employment." In this case, respondent received this notice from his principal, rather than the superintendent. However, such notice was sufficient to inform respondent of the gravity of the situation. In the subsequent year, or school year 1994-95, the same notice must again be provided to the employee "no later than 6 weeks prior to the close of the postschool conference period." In this case, the notice was given by the superintendent, but this occurred less than "6 weeks prior to the postschool conference period." Although several errors in procedure occurred during the termination process, they were not so serious as to impair the fairness of this proceeding, or to cause prejudice to respondent in the defense of this case. Therefore, the errors in procedure are deemed to be harmless. Evaluation and Assistance The statute also calls for the employee to be "provided assistance and inservice training opportunities to help correct the noted performance deficiencies." However, the specific type of assistance and opportunties to be afforded a teacher is not statutorily defined. Respondent contends that such assistance and opportunities were never provided. Beginning with his first evaluation in February 1994, respondent was given assistance in the form of specific suggestions on how to correct the deficiencies. Also, numerous principal-teacher conferences were held to discuss the observation findings. After the March 14, 1994 evaluation, respondent was given a lengthy list of videos, journals and publications to use in an effort to correct his deficiencies. He was also given written instructions for the use of the materials. At the beginning of school year 1994-95, respondent had a pre-school meeting with both his principal and union representative concerning this matter. He also met with the principal on November 20, 1994, and the two discussed "other suggestions, techniques and/or personnel that might assist (his) teacher improvement process." Following an evaluation on December 12, 1994, respondent was given a detailed explanation of unacceptable areas of performance and a lengthy list of suggestions on how to correct those deficiencies. After another evaluation on February 21, 1995, respondent was again given advice on how to correct his deficiencies before the next evaluation. Although respondent says he took this advice to heart, and did all of the things suggested by his principal, he was still unable to obtain an acceptable rating. The Board, however, cannot be faulted for respondent's continued inability to correct the cited deficiencies. Through his expert, respondent contended that the evaluation and assistance process was not adequate. In reaching this conclusion, the expert relied upon her experience in the States of Georgia and Texas, as well as Dade and Seminole Counties, Florida. She did not, however, have any teacher remediation experience in small, rural counties such as Suwannee. The expert pointed out that a peer teacher did not assist the principal in performing the evaluations and making subsequent recommendations on how to correct the deficiencies. But there is no requirement that more than one person conduct the evaluation, and respondent (and his union representative) did not request that someone other than principal McMullen perform the observation. The expert further contended the Board should have assigned a peer teacher to assist respondent throughout this process. She also recommended that the Board send him to various seminars relating to his deficient areas. Again, however, there is no statutory requirement that a school board provide this type of assistance, especially when other forms of assistance and opportunities being given the teacher are adequate. Finally, the criticism that the Board did not adequately formalize its planned assistance measures into a written document is deemed to be unavailing. Because the assistance and opportunties provided respondent were adequate, the Board met its statutory obligation to provide "assistance and inservice training opportunities to help correct the noted performance deficiencies." Summary After being evaluated in a fair and impartial manner, and receiving timely and adequate notice of his deficiencies, as well as adequate assistance and opportunities to correct those flaws, respondent did not remediate a noted performance standard and related indicator during two consecutive school years. Therefore, the Board could properly change respondent's contract status from PSC to annual at the end of school year 1994-95 and decline to renew his contract.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a Final Order terminating respondent from employment by not renewing his 1995-96 contract. DONE AND ENTERED this 4th day of January, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 4th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2988 Respondent: 1-3. Partially accepted in finding of fact 2. Partially accepted in findings of fact 2 and 3. Rejected as being unnecessary. Partially accepted in finding of fact 2. Partially accepted in finding of fact 1. Partially accepted in finding of fact 10. 9-12. Partially accepted in finding of fact 11. Partially accepted in finding of fact 10. Rejected as being unnecessary. 15-17. Partially accepted in finding of fact 12. 18-19. Rejected as being unnecessary. 20-21. Partially accepted in finding of fact 44. 22-35. Partially accepted in findings of fact 13-20. 36-56. Partially accepted in findings of fact 21-34. 57-67. Partially accepted in findings of fact 40-46. 68-71. Partially accepted in findings of fact 35-37. 72-73. Partially accepted in finding of fact 39. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the more credible evidence, cumulative, or a conclusion of law. COPIES FURNISHED: J. Victor Africano, Esquire P. O. Box 1450 Live Oak, Florida 32060-1450 Sally C. Gertz, Esquire 118 North Monroe Street Tallahassee, Florida 32399-1700 Charles F. Blaylock, Jr. Superintendent Suwannee County School Board 224 West Parshley Street Live Oak, Florida 32060-2396 Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether Polk County School Board ("School Board") has just cause to terminate Judy Gail Vann ("Respondent" or "Vann") pursuant to Section 1012.34, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Respondent started working for the School Board in 2000. During the last ten years, she has taught English. In November 2008, the School Board recommended Respondent's termination for excessive absenteeism, dishonesty, ongoing gross insubordination, and not preparing lesson plans. The case came before the Division of Administrative Hearings in Case Number 09-0955.1 On August 20, 2009, a Recommended Order was entered concluding that a preponderance of the evidence in that case did not support the alleged acts in the charging document, and Respondent was reinstated with full back pay. After the School Board reinstated Respondent, for the 2009-2010 school year, she was assigned to Traviss Career Center ("Traviss") to teach 11th and 12th grade English. Prior to this assignment, Respondent had never taught in a high school. Traviss is a school for high school students and adults. Both high school diplomas and certificates in a career field or vocational trade are available to graduates. Traviss students that are trying to achieve a regular high school diploma take the FCAT. Seventy-seven percent of the student population at Traviss who took the 2008-2009 FCAT were reading at level two or below. Level two is a fifth-sixth grade reading level. Polk County requires that the 11th and 12th grade students do the same work as their counterparts at the traditional schools and follow the same curriculum maps.2 Alan Harrell ("Harrell"), the assistant director of curriculum, was Vann's supervisor at Traviss. His primary responsibility is to oversee the academic programs. Such duties include monitoring lesson plans and learning guides, and keeping the curriculum maps on target. Harrell also oversees students' grades and makes sure students are getting the right courses for their diploma. Harrell supervised Vann during the six periods she taught a day. Three of the classes were English III for juniors and three were English IV for seniors. Vann tried to be creative when teaching the curriculum maps. When the students were required to study Shakespeare, Chaucer, and epic works such as Beowulf, she would often-times show modern movies like Hercules to keep the students interested. Harrell did not think the movies were the best teaching methods for the students. Harrell made regular visits to Vann's classroom and met with her about various issues periodically. During Harrell's second meeting with Vann on October 16, 2009, some items discussed were students' grades, homework, and lesson plans. On November 17, 2009, Harrell emailed Vann to instruct her about her lesson plans for the two previous weeks. The email stated: Please post your lesson plans for week of 11/09/2009 and for week of 11/16/2009. They should be posted on Friday prior to the next week so we have some guideline for the substitute to be able to follow when the teacher is absent. During Harrell's fifth meeting with Vann on November 30, 2009, Harrell discussed several areas of concern. The first was her lesson plans not being posted. During the first semester, Vann was absent from school approximately 15 days. On December 11, 2009, Harrell met with Vann again to discuss proper protocol and procedures for preparing lesson plans. Harrell also discussed Vann's numerous absences and the effect on the students. On January 11, 2010, Harrell contacted Vann again about incomplete lesson plans by email. It stated: In reviewing your lesson plans for the week of 1/11/2010, I observe a number of discrepancies that need to be corrected. "same as above" under PLANNING does not define the objectives. "same as above" under PLANNING does not define the Standards/Benchmarks. Under Procedures/Activities, a description of what the intended activity is going to be needs to be described. As previously discussed your lesson plans need to be in line with the curriculum map. On January 13, 2010, Vann emailed Harrell and informed him that she had "reposted the completed version of the lesson plan template for 1/11/10." Deficiencies in Vann's performance as a teacher and absences from school continued into the second half of the school year. Vann's posted lesson plans were incomplete or insufficient, and she would email lesson plans to the school on the mornings when she was absent. Vann was absent approximately 10 days without pay between January 7, 2010, and February 11, 2010, including the 11th. The emails Vann sent during that period listed the following explanations for her absences: January 7, 2010, "I have no voice."; January 11, 2010, "Sick . . ."; January 12, 2010, at 5:19 a.m., "Sick since Friday . . . trying to see doctor today"; January 12, 2010, at 5:24 a.m., "As stated my lesson plan template was incomplete for 1/11/10 because I have been sick and was unable to complete the template."; January 19, 2010, "I have been down with a Migraine for three days and I hope to be able to see the doctor today."; February 9, 2010, "I am having very severe back problems and have a doctor's appointment today."3 On February 12, 2010, Respondent was in a car accident on the way from school on Thornhill Road. A car slammed into her going approximately 55 miles per hour in the drizzling rain. Vann first sought medical treatment on February 25, 2010, from a chiropractor, Dr. Sundermeyer.4 Vann was treated the rest of the school year for her back and spine by the chiropractor. As a result of Vann's continuing decline in performance, on February 25, 2010, Respondent received a Notice of Unsatisfactory Performance, which advised that she had performance deficiencies and was being placed on a 90-day probationary period pursuant to Section 1012.34(3)(d), Florida Statutes. The Notice of Unsatisfactory Performance informed Respondent that she had failed to perform satisfactorily in the following aspects or duties of her job: You have had excessive absences. You have failed to prepare and maintain current lesson plans for your classes. In addition to the fact that the preparation of lesson plans is a requirement of your job, your failure to prepare such plans has made it extremely difficult to maintain the educational process for your students during your absences. The management of your classroom environment, including student discipline, has been extremely poor. You have failed to prepare and deliver appropriate or effective teaching strategies for your students. You have failed to maintain an appropriate and distinct relationship as a teacher with your students. A meeting was held on March 1, 2010, with Vann to discuss recommendations and a plan of action to provide assistance in correcting the deficiencies identified in the Notice of Unsatisfactory Performance. Dr. Dickens, Harrell, Mrs. Amy Hardee("Hardee"), Ms. Angela Dawson, and Vann with her PEA representative attended the meeting. At the March 1, 2010, meeting Vann was informed that she needed to correct the following deficiencies: excessive absences, lesson plan preparation, classroom management, effective teaching strategies, and maintaining an appropriate and distinct relationship with her students. After the meeting, Vann and her union representative met with Hardee, the senior curriculum coordinator of language arts. Vann indicated that her textbook resources were out of date and requested Hardee fix the problem. Hardee immediately located literature and grammar books and made arrangements to have them delivered to Vann. On March 2, 1010, Vann received her 90-Day Corrective Action Plan that specified the following five areas that Respondent was to correct during her probationary period from March 2, 2010, to May 30, 2010: Excessive Absences-It was agreed that you will provide Traviss Career Center a doctor's note when you are ill. You will also make a diligent effort to contact Ms. Loretta Stewart(Principal Secretary) before 6:30am when you are not going to be at work. This will allow sufficient time to obtain a substitute instructor for your class. Lesson Plans-To assist you with improving your classroom management skills, it was suggested that PD 360 be used. Outlines of the segments are attached for your use. Classroom Management-To assist you with preparing lessons for your class, it was suggested PD 360 be used. Outlines of the segments are attached for your use. Effective Teaching Strategies-To assist you in developing effective teaching strategies, it was suggested PD 360 be used. Outlines of the segments are attached for your use. Maintaining a distinct relationship-It was recommended that you refrain from use of unprofessional language and allowing disruptive student behavior during instructional time. You are to work on building a better instructional relationship with your students and expect the respect you deserve. * * * Traviss will provide a substitute for you on Mondays and Thursdays for the remainder of this school year to allow you time to work in the above mentioned areas of deficiency. It is your responsibility to be present at school and working on the criteria listed above. To address the issues with lesson plans, classroom management, and effective teaching strategies, Hardee assigned Vann 39 segments of Professional Development 360 ("PD360") training to view and complete the questions during her probationary period.5 Vann had less than seven hours of PD360 training to complete during her 90-day probationary period. Respondent was provided a list of the 24 modules addressing classroom instruction and 15 modules on differentiated instruction. Each module included a video Vann was to view, followed by approximately six reflection questions that were to be answered on-line by her. On March 2, 2010, Vann acknowledged her understanding and agreement to adhere to the corrective action plan with her signature. To ensure that Vann was successful in completing her PD360 training, a substitute instructor was hired for classroom instruction to allow Vann some time to complete the professional development plan during the 90-day probationary period. However, Respondent chose not to come to work and was absent most of the remainder of the school year. While on probation, from March 3, 2010 to May 5, 2010, Respondent was absent without pay 12 days during March and 17 days during April 29 days.6 Respondent claims that she was not at work because she was sick and couldn't attend. However, Respondent only provided one medical note excusing her from working due to illness. Vann provided the School Board a note that excused her from work from March 17, 2010, until March 18, 2010, which was on an Auburndale Chiropractic, LLC Authorization for Absence form.7 Respondent also provided the School Board a letter dated May 10, 2010, that specified treatment but did not indicate Vann was prohibited from attending work. The letter was from the same chiropractor, Dr. Sundermeyer, on Auburndale Chiropractic, LLC letterhead, not an Authorization for Absence form as previously submitted by Respondent for the March 2010 excused absence. The letter on her chiropractor's letterhead stated: To Whom It May Concern: I am writing in regards of my patient, Judy Gail Vann. I have been treating Ms. Vann for neck pain and lower back pain since February 25, 2010. She has been under my constant care 3 times per week since she started her treatment in this office. Please feel free to contact me if you have any questions concerning my patient's health. Thank you, Dr. Sara Sundermeyer8 During her probationary period, Vann never sought treatment from a medical doctor other than the chiropractor, Dr. Sundermeyer. Respondent was not prohibited from attending work due to her illness.9 Vann failed to provide a doctor's note indicating that she could not attend work for her 29 days of absences without pay during her probationary period. Vann improved with her lesson plans. However, starting April 13, 2010, Respondent submitted the same lesson plans for all classes, no matter whether for the 11th or 12th grade students, and did not distinguish between the separate curriculums required for each grade. While on probation, Vann viewed only 15 of the assigned 39 PD360 modules.10 She completed one of the 15 reflection questions and answers, which was a total of two and one-half hours of the seven hours assigned. Vann also failed to meet either the criteria of contacting Ms. Loretta Stewart (Principal's Secretary) when absent or making the contact before 6:30 a.m. some mornings including: April 5, 2010; March 17, 2010; and April 15, 2010.11 By letter dated May 14, 2010, Principal Dickens ("Dickens") informed Vann that a decision had not yet been made on her reappointment at Traviss. The letter further informed Respondent that she had failed to fulfill several of the requirements for her 90-day Corrective Action Plan, including not providing a doctor's note covering all of her absences for illness when she was ill and unable to report to work and failing to complete the PD360 segments designed to help her with her classroom management skills, lesson plans, and effective teaching strategies. On June 3, 2010, Dickens recommended to Superintendent Gail McKenzie that Respondent's employment be terminated for failure to comply with the 90-day Corrective Action Plan, and her failure to perform her duties as an English teacher. The following items were identified as not being completed during the probationary period: failure to provide physician's notes when absent; Dr. Dickens' secretary was not contacted on days Respondent was absent; and the failure to complete the PD360 training. By letter dated July 15, 2010, Respondent was informed that the Superintendent would recommend her termination because Vann had "failed to correct [her] performance deficiencies, failed to complete [her] Professional Development Plan, and that there is 'just cause' for [her] termination pursuant to Section 1012.34, Florida Statutes."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED Polk County School Board enter a final order ratifying Vann's termination from further employment in Polk County Public Schools. DONE AND ENTERED this 21st day of December, 2010, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 2010.
