08-002703TTS Duval County School Board vs. Alena Hunt Status: Closed Recommended Order on Tuesday, March 17, 2009.

Summary: Respondent`s employment as a teacher should be terminated based upon incompetence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-2703

)

ALENA HUNT, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on January 15

and 16, 2009, in Jacksonville, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: David J. D’Agata, Esquire

Office of the General Counsel

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

For Respondent: David A. Hertz, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

STATEMENT OF THE ISSUES

The issues in this matter are as follows: (a) whether

Petitioner followed all procedural requirements before deciding

to terminate Respondent's employment as a teacher; and

b) whether Petitioner properly determined that Respondent's

employment as a teacher should be terminated.

PRELIMINARY STATEMENT

On May 14, 2008, Mr. Ed Pratt-Dannals, Superintendent of

Duval County Public Schools, issued Respondent Alena Hunt

(Respondent) a Notice of Discharge as a teacher based on

professional incompetence as defined at Section 4(e) of the

Duval County Teacher Tenure Act, Laws of Florida, Chapter 21197

(1941). The notice referenced Respondent's consecutive

unsatisfactory evaluations from two different principals while

she taught at two different schools during school years 2006-

2007 and 2007-2008.

Upon receipt of the notice, Respondent timely requested an

administrative hearing to contest the termination of her

employment. On June 6, 2008, Petitioner Duval County School

Board (Petitioner) referred the case to the Division of

Administrative Hearings. A subsequent Notice of Hearing dated

June 17, 2008, scheduled the hearing for September 4, 2008.

On August 26, 2008, Petitioner filed an Unopposed Motion

for Continuance. On August 29, 2008, the undersigned issued an

Order Granting Continuance and Re-scheduling Hearing for

October 23, 2008.

On October 9, 2008, Petitioner filed an Unopposed Motion

for Continuance. On October 14, 2008, the undersigned issued an

Order Granting Continuance and Re-scheduling Hearing for

January 15 and 16, 2009.

At the hearing, Petitioner presented the testimony of four

witnesses. Petitioner offered 28 exhibits that were accepted as

evidence.

Respondent testified on her own behalf. Respondent offered

no exhibits into evidence.

At the conclusion of the hearing, the parties agreed to

file proposed recommended orders within 10 days of the

transcript being filed. The transcript was filed on January 28,

2009, making the proposed recommended orders due on or before

February 9, 2009. By Order dated February 16, 2009, Petitioner

was granted an extension of time up to February 20, 2009, to

file its proposed order.

Respondent filed a proposed order on February 9, 2009.

Petitioner filed its proposed order on February 20, 2009.

FINDINGS OF FACT

1. In 1985, Respondent received her Florida Teacher

Certification, qualifying her to teach elementary education,

Grades 1-6. She continues to hold that certification.

2. Respondent worked as a substitute teacher in

Petitioner's elementary, middle, and high schools for 13 years

before she was hired as a full-time teacher in 1998.

Thereafter, Respondent taught the following classes at the

arts to sixth and seventh graders at Paxon Middle School;

(b) from 2003-2004, third graders at John E. Ford Elementary;

(c) from 2004-2006, first graders at Lake Lucina Elementary

(Lake Lucina); (d) from 2006-2007, first graders at Arlington

Heights Elementary (Arlington Heights); and (e) from 2007-2008,

fourth graders at Sabal Palm Elementary (Sabal Palm).

3. Throughout her tenure as a full-time teacher, school

principals evaluated Respondent's performance on an annual

basis. During school years 2006-2007 and 2007-2008, Petitioner

to evaluate Respondent's teaching ability.

4. The TAS measures teaching performance based on nine

different “Competencies.” These Competencies, listed in the

2006-2007 and 2007-2008 versions of the TAS include the

following: (a) Promotes student growth and performance;

(b) Evaluates instructional needs of students; (c) Plans and

delivers effective instruction; (d) Shows knowledge of subject

matter; (e) Utilizes appropriate classroom management

techniques, including the ability to maintain appropriate

discipline; (f) Shows sensitivity to student needs by

maintaining a positive school environment; (g) Communicates with

parents; (h) Pursues professional growth; and (i) Demonstrates

professional behaviors.

5. Under the TAS, a school administrator (usually the

principal) evaluates teachers based on three scheduled classroom

observations. During the observations, the principal uses the

Teacher Assessment Instrument (“TAI”) to collect data and

identify “indicators” associated with each Competency. In

evaluating a teacher’s overall performance, principals may also

consider informal, unannounced observations.

6. The Classroom Observation Instrument (“COI”) is an

earlier version of the TAI. The COI contains the same

Competencies as the TAI, though they appear in different order.

7. The “Evaluation of Professional Growth of Teacher” is a

summative evaluation form used during the final annual

evaluation conference. The form reflects the teacher’s final

rating as to each Competency and the principal’s overall

performance rating for the school year.

8. The TAS procedures provide as follows in pertinent

part:

TAS Procedures -Principal/Supervisor

PLEASE NOTE: One purpose of the TAS is to

assist the employee to improve performance.

Performance problems are best addressed

early. If an informal observation or

classroom visit indicates possible

performance problems then the principal

should immediately arrange to initiate a

formal classroom observation using the TAI.

1. Conduct an initial orientation for

all instructional employees to be evaluated

by the TAS. This should occur during pre-

planning and include at minimum, 1) an

overview of the forms and procedures, 2) a

description of the competencies and their

indicators, and 3) your schedule for

observation activities.

2. Pre-arrange with the employee at

least one instructional session to be

formally observed.

3. Conduct a pre-observation

conference with the employee. Discuss with

the employee information regarding the

lesson plan, targeted students and

methodology. A pre-observation conference

must occur.

4. Conduct the observation using the

TAI. All competency indicators that are

observed during this observation will be

checked on the TAI.

5. Complete the TAI for all

competencies/indicators not completed during

the classroom observation. After the

instrument has been completed, review and

rate the data, and prepare the report to

share with the employee.

6. Within five (5) working days,

schedule and conduct a post-observation

conference with the employee to provide

feedback.

7. During the post-observation

conference, review the TAI with the

employee. Identify any problematic areas.

At this time, schedule a conference to

develop a success plan for employees who

potentially may receive an overall

unsatisfactory evaluation. This action must

take place within two (2) weeks of the post

conference but prior to February 1. During

this time, a letter of Potential

Unsatisfactory Evaluation must be given to

the employee.

8. Close the conference by signing all

appropriate documents and securing the

employee's signature of receipt.

9. Follow the time line provided in

the manual to ensure compliance with the

reappointment process and to ensure due

process for the employee.

9. If a teacher demonstrates deficient performance under

any Competency, a "Success Plan" is written in collaboration

with the teacher. The Success Plan identifies areas of weakness

by Competency, sets out objectives, and provides timelines to

meet the objectives.

10. A Success Plan Team includes the teacher, school

administrators, colleagues that have expertise in the relevant

a teachers’ union representative.

11. According to the TAS, personnel decisions will be

appropriate if the timeline and the following steps are

followed:

1. Notify the employee in clear and

simple written communication(s) regarding

your specific performance expectation as

identified by the competency indicators on

the TAI.

2. Explain to the employee in oral and

written detail the deficiency(ies) from the

previously stated expectation(s). (Be

specific by noting the time factors, place,

circumstances, principal observations).

3. Arrange with and/or for the employee

to receive appropriate training or other

assistance as needed in order to improve the

deficiency(ies) noted on the TAS Success

Plan. Record in writing any offers of help.

4. Time any communication(s) to the

employee so there is sufficient opportunity

for the employee to correct deficiencies.

5. The Success Plan Team (including the

identified employee) must meet frequently to

review the status of the implementation of

the plan and the employee’s progress.

12. While teaching first graders at Lake Lucina,

Respondent elected to transfer to Arlington Heights in

school year 2006-2007. Robert L. Snyder was, and

still is, the principal of Arlington Heights.

13. Upon meeting Respondent, Mr. Snyder considered

Respondent as a pleasant and likeable person. However, because

Respondent received an unsatisfactory evaluation the prior year,

Mr. Snyder arranged for the development of a Success Plan for

Respondent.

14. With Respondent's input, the Success Plan Team drafted

a Success Plan to be implemented at Arlington Heights. The

Success Plan outlined areas of weakness, objectives toward

improvement in those areas, and timelines. It was finalized and

signed by Ms. Hunt in October 2006.

15. The Success Plan Team included experienced teaching

coaches. The coaches modeled instruction in Respondent's class

on several occasions.

16. Mr. Snyder conducted three formal observations and

observed Respondent’s teaching performance informally on several

occasions. During his visits to the classroom, Mr. Snyder would

see students doing worksheets amounting to “busy work” which had

no apparent connection to instruction or evaluation.

17. Mr. Snyder kept personal notes documenting

Respondent's tardiness to school on several occasions. He also

noted her tardiness to workshops and in-service programs,

including an in-service program focused on a reading assessment

system for first graders known as Developmental Reading

Assessment (DRA).

18. On or about January 30, 2008, Mr. Snyder intended to

deliver a letter to Respondent, advising her that she was at

risk to receive an unsatisfactory evaluation for the year. When

he went to Respondent's classroom, Mr. Snyder discovered that

Petitioner was absent and had left no plans for the substitute

teacher. The school policy required teachers to have three days

of substitute plans in case of an unexpected absence.

19. While Mr. Snyder assisted in the development of plans

for the substitute teacher, he observed incomplete and blank DRA

data collection forms. The forms did not indicate the students'

levels of reading ability or the strategies put in place to

enhance areas of weakness. Mr. Snyder also observed the

teaching assistant doing work which should have been done by

Respondent, such as grading papers.

20. When Respondent submitted her lesson plans to

Mr. Snyder, he observed that Respondent was not actually

teaching the lesson plans to her class. Mr. Snyder also noted a

lack of grades in Respondent's grade book. Mr. Snyder brought

these concerns to Respondent's attention verbally and in

writing.

21. Throughout the school year, Respondent had a full-time

Mr. Snyder observed tensions between Respondent and her TA, as

well as a second TA. The working relationship between

Respondent and her TA deteriorated through the year.

22. On one occasion, Respondent left her class of first

graders completely unattended by an adult for twenty minutes.

Mr. Snyder knew Respondent was in the office working on the

computer when he saw Respondent's unsupervised students.

23. On another occasion, Mr. Snyder saw Respondent who

appeared to be videotaping students in a common hallway. The

school did not have parental permission to videotape some of the

students in another teacher's class. Mr. Snyder retrieved the

videotape and discarded it.

24. Respondent did not attend certain conferences with

Mr. Snyder (including at least one formal pre-observation

conference). Additionally, it was difficult to conduct meetings

with the Success Plan Team because Respondent always insisted

that an outside union representative instead of the building

representative attend the meetings with her. Scheduled meetings

with Respondent were delayed or cancelled on a number of

occasions because an outside union representative was not

available.

25. Mr. Snyder formally observed Respondent and completed

TIAs on December 15, 2006, February 6, 2007 and March 14, 2007.

Mr. Snyder had a conference with Respondent before and after

each formal observation to discuss the TIAs. Respondent signed

each TIA.

26. Respondent’s Evaluation of Professional Growth of

Teacher was issued on March 15, 2007. Reflecting the findings

on the TIAs, the annual evaluation showed unsatisfactory

performance in the following Competencies: Promoting Student

Growth and Performance; Planning and Delivering Effective

Instruction; and Demonstrates Professional Behaviors. The

evaluation also showed a “Needs Improvement” rating in the

following Competencies: Evaluates Instructional Needs of

Students; Utilizes Appropriate Classroom Management; and Parent

Communications. Respondent received and signed the annual

evaluation.

27. In school year 2007-2008, Respondent elected to

transfer to Sabal Palm. At the new school, Respondent taught

reading, writing and science to a fourth-grade class.

Respondent's co-teacher, Kim Stancil, taught math and social

studies. There were approximately 26 students in the class.

28. The principal at Sabal Palm was, and still is, Mary

Mickel. Because Respondent received an unsatisfactory

evaluation the prior year, Ms. Mickel initiated a Success Plan

for Respondent. Respondent signed a final copy of the plan on

December 11, 2007.

29. The Success Plan outlined areas of weakness,

objectives toward improvement in those areas, and timelines.

The Success Plan Team consisted of Ms. Mickel, other teachers, a

“standards coach," and a “reading coach.”

30. Ms. Stancil retired on October 29, 2007. A new co-

teacher, Christie Callison, began teaching in January 2008.

31. Ms. Mickel became concerned when Respondent failed to

attend grade-level meetings. After receiving encouragement from

Ms. Mickel, Respondent began attending the meetings but did not

actively participate.

32. Ms. Mickel had several parents call to complain about

how Respondent treated their children or how their children were

doing in Respondent's class. Ms. Mickel participated in at

least one parent/teacher conference to resolve a parent's

concerns.

33. Ms. Mickel visited Respondent's classroom from time to

time throughout the school year. Ms. Mickel conducted four

formal evaluations of Respondent's performance.

34. The formal observations took place on the following

dates: September 13, 2007; November 19, 2007; January 28, 2008;

and March 5, 2008.

35. Ms. Mickel provided Respondent with advanced notice of

the formal observations. Ms. Mickel had a conference with

Ms. Hunt before and after the observations.

36. During the formal observations, Ms. Mickel used the

COI instrument to document indicators of performance under the

nine Competencies. Respondent does not challenge Ms. Mickel's

use of the COIs versus the TIAs.

37. Ms. Mickel observed Respondent using materials and

teaching subjects that were not age-appropriate for fourth

graders. For instance, Respondent based a lesson on a book

typically used with 1st graders. Ms. Mickel discussed this with

Respondent and commented on the subject in the COIs. As time

passed, Ms. Mickel observed Respondent's continued failure to

properly assess student performance and failure to tailor

instruction to student needs.

38. Respondent had opportunities to participate in grade-

level training on a weekly basis. She was allowed to observe

other teachers in her school without having to take personal

time. Respondent's coaches came into her class, prepared a

lesson plan with her, and modeled the instruction.

39. According to Ms. Callison, Respondent refused to

collaborate with planning and instruction. Respondent did not

want, give or receive assistance from her co-teacher.

40. Respondent typically did not provide direct

instruction to the students. Instead, Respondent gave the

students “busy work” via worksheets that had nothing to do with

the required curriculum.

41. Respondent openly classified students by ability,

would then have students grade each others’ papers and report

the grades out loud to Respondent in class.

42. Respondent’s Evaluation of Professional Growth of

Teacher was issued on March 14, 2008. Reflecting the findings

on the COIs, the annual evaluation showed unsatisfactory

performance under the following Competencies: Evaluates

Instructional Needs of Students and Plans and Delivers Effective

Instruction. Respondent obtained a “Needs Improvement” rating

in the following Competencies: Promotes Student Growth and

Performance; Communicates with Parents; and Demonstrates

Professional Behaviors. Respondent received and signed the

annual evaluation.

43. Respondent testified that teaching fourth grade is

particularly challenging compared to teaching other grade

levels. According to Respondent, fourth-grade is difficult to

teach because students must take the Florida Comprehensive

Assessment Test (FCAT) in math, reading and writing.

44. Although Respondent was without a co-teacher for a

portion of the 2007-2008 school term, she is certified to teach

all fourth-grade subjects. More importantly, Respondent has had

experience teaching reading and writing to sixth and seventh-

grade students, some of whom were working at the fourth-grade

level.

45. Respondent worked with and was evaluated by seven

different principals throughout the last eight years of her

employment. During those eight years, Respondent's summative

evaluations showed her performance as follows: (a) eight

consecutive years with unsatisfactory performance in the Parent

Communication Competency; (b) five consecutive years with

unsatisfactory performance in the Student Growth and Performance

Competency; (c) five consecutive years with unsatisfactory

performance in the Planning and Delivery of Instruction

Competency; (d) four consecutive years with unsatisfactory

performance in the Evaluation of Student Needs Competency.

CONCLUSIONS OF LAW

46. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

cause pursuant to Sections 120.569, 120.57 (1), and

1003.57(3)(i)(e), Florida Statutes (2008), and Florida

Administrative Code Rule 6A-6.

47. Petitioner has the burden of proving that Respondent's

employment should be terminated. See Schaffer ex rel. Schaffer

v. Weast , 546 U.S. 49 (2005); Devine v. Indian River County

School Board , 249 F.3d 1289, 1291-92 (11th Cir. 2001), cert.

denied , 537 U.S. 815 (2002); and Ferris v. Turlington , 510 So.

2d 292, 294, n.2 (Fla. 1987).

48. While the standard of proof applied to license

revocation cases is clear and convincing evidence, the standard

of proof applied to employment termination cases is a

preponderance of the evidence. See Ferris v. Austin , 487 So. 2d

1163 (Fla. 5th DCA 1986); South Florida Water Management Dist.

V. Caluwe , 459 So. 2d 390 (Fla. 4th DCA 1984).

49. In this case, Petitioner determined that Respondent

should be discharged from her teaching position on the basis of

"professional incompetence." See Section 4(e), Duval County

Teacher Tenure Act, Laws of Florida, Chapter 21197 (1941)(as

amended).

50. The term “incompetency” as defined in the Florida

Administrative Code has been accepted as instructive in

determining incompetence under the Tenure Act. See School Board

of Duval County v. Kerry Smith , DOAH Case No. 89-4132

(Recommended Order, August 22, 1990).

51. Florida Administrative Code Rule 6B-4.009 states, in

pertinent part, that:

(1) Incompetency is defined as

inability or lack of fitness to discharge

the required duty as a result of

inefficiency or incapacity . . . [a finding

of incompetence may be based on] a

preponderance of evidence showing the

existence of one or more of the following:

(a) Inefficiency: (1) repeated

failure to perform duties prescribed by law;

(2) repeated failure on the part of a

teacher to communicate with and relate to

children in the classroom, to such an extent

that pupils are deprived of minimum

educational experience; or (3) repeated

failure on the part of an administrator or

supervisor to communicate with and relate to

teachers under his or her supervision to

such an extent that the educational program

for which he or she is responsible is

seriously impaired.

(b) Incapacity: (1) lack of emotional

stability; (2) lack of adequate physical

ability; (3) lack of general educational

background; or (4) lack of adequate command

of his or her area of specialization.

52. Florida Administrative Code Rule 6B-5.004 sets forth

the following standards for the competent education

professional:

The competent educator shall use or

ensure the use of acceptable techniques to

analyze the needs and potential of

individuals. The educator, commensurate

with job requirements and delegated

authority, shall demonstrate competence in

the following techniques to analyze the

needs and potential of individuals:

(1) Diagnose the entry level and skill

of students, using diagnostic tests,

observations and student records.

(2) Select, adapt or develop, and

sequence instructional materials and

activities for the designated set of

instructional objectives and student needs.

(3) Create interest through the use of

materials and techniques appropriate to the

varying abilities and backgrounds of

students.

(4) Use individual student interests

and abilities when planning and implementing

instruction.

(5) Make assignment of tasks and

duties consistent with individual abilities

and specialties.

53. During the 2006-2007 school year, Respondent's

teaching performance revealed itself through informal

observations in the following ways: (a) she relied on

worksheets that amounted to busy work with no connection to

curriculum or lesson plans; (b) she failed to properly complete

the DRA forms; (c) she let her TA grade papers; (d) she failed

to record a sufficient number of grades in her grade book;

(e) she did not teach according to her lesson plans; (f) on one

occasion, she failed to ensure that her class was properly

supervised; and (g) she did not follow school policy regarding

the videotaping of students. These problems, together with

Mr. Snyder's observations during the formal evaluations,

establish Respondent's incompetence.

54. During the 2007-2008 school year, Respondent's

teaching performance revealed itself through informal

observation in the following ways: (a) she failed to attend

important meetings; (b) she used materials that were not age

appropriate for fourth grade students; (c) she failed to

properly assess student performance and/ or to tailor her

lessons to student needs; (d) she refused to collaborate

planning and instructions with her co-teacher; (e) she gave the

students busy work that had nothing to do with the curriculum;

(f) she openly grouped the student's groups as "middle" or

"low;" and (g) she allowed students to grade each other's papers

and to report the grades out loud. These problems, together

with Ms. Mickel's observations during the formal evaluations,

establish Respondent's incompetence.

55. Before discharging a teacher for professional

incompetence, the Tenure Act mandates that the teacher is first

given: (a) fair written notice containing a clear and detailed

statement on which the claim of incompetence is based; (b) at

least one opportunity to transfer to a new school; and

(c) adequate opportunities throughout one school year for in-

service training tailored to the correction of the alleged areas

of incompetence. All of these prerequisites were met in this

case.

56. Additionally, the teacher is required to cooperate and

make a fair attempt to participate in the training. Here,

Respondent did not attend or participate in grade-level meetings

until she was forced to do so. Respondent was repeatedly tardy

to workshops and in-service programs. She did not seem to take

advantage of and make the most of the expertise of her on-site

colleagues and coaches who were willing to plan lessons and

model instruction.

57. There is substantial, competent evidence in the record

to support Petitioner's decision to terminate the employment of

Respondent on the basis of professional incompetence. There is

also substantial, competent evidence in the record showing that

Respondent’s contractual rights were not violated in the

process.

RECOMMENDED ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that:

Petitioner enter a final order terminating Respondent's

employment.

DONE AND ENTERED this 17th day of March, 2009, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of March, 2009.

COPIES FURNISHED :

David A. Hertz, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

David J. D’Agata, Esquire

Office of the General Counsel

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

Alena Hunt

9923 Jeanette Road

Jacksonville, Florida 32246

Ed Pratt-Dannals, Superintendent

Duval County Public Schools

1701 Prudential Drive

Jacksonville, Florida 32207

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.