04-002138 Duval County School Board vs. Diane Johnson Status: Closed Recommended Order on Wednesday, March 2, 2005.

Summary: Petitioner proved numerous instances of departures from adopted teaching performance standards, tardiness and absences, to justify termination for incompetence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2138

)

DIANE JOHNSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to appropriate notice this cause came on for

formal proceeding and hearing before P. Michael Ruff duly -

designated Administrative Law Judge of the Division of

Administrative Hearings in Jacksonville, Florida on January 20,

2005.

APPEARANCES

For Petitioner: Virgi nia Baker Norton, Esquire

City of Jacksonville

Office of General Counsel

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

For Respondent: Diane Johnson, pr o se

2746 Stardust Court, No. 44

Jacksonville, Florida 32211

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether the Respondent should be discharged for alleged

violations of the Duval County Teacher Tenure Act, Chapter

21197, Laws of Florida (1991)("Act"), as set forth in the Notice

of Termination entered May 6, 2004.

PRELIMINARY STATEMENT

This cause began when a Notice of Termination of Employment

was issued by the Superintendent of the Duval County Public

Schools on May 6, 2004, alleging that the Respondent

Diane Johnson, had violated the Act in the course of performing

her duties as a teacher, namely by being guilty of professional

incompetence as provided in subsection (e) of Sect ion 4 of the

Act. The Petitioner timely availed herself of the right to a

formal proceeding to contest that initial position taken by the

Petitioner, Duval County School Board (Board). This formal

proceeding and hearing ensued.

The cause came on for he aring as noticed. During the

course of the hearing the Petitioner presented the testimony of

Patsy Butterbrodt, Jack Shanklin, Joan Pierce, Alan Fletcher,

Art Lauzon, Jan Moore, Dr. Mary Jeanette Howle, and

John Williams. The Petitioner also submitted ex hibits A through

Z as well as AA through EE, all of which exhibits were admitted

into evidence. The Respondent testified on her own behalf, but

offered no other testimony or exhibits into evidence.

Upon conclusion of the proceeding the parties requested an

opportunity to file proposed recommended orders. The P roposed

R ecommended O rders were filed on or before January 31, 2005, and

have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Respondent holds Florida Educa tor's Certificate No.

537246, licensing her to teach in Florida. That license allows

her to teach music for kindergarten through twelfth grades. She

has worked for the Duval County School Board as a teacher

continuously since 1997 and is a tenured teache r. She has prior

teaching experience with the Duval County School Board as well.

2. During the 2001 - 2002 school year Patsy Butterbrodt, a

music teacher for the Petitioner, evaluated the Respondent

during Ms. Johnson's assignment as a teacher at William Raines

High School (Raines). Ms. Butterbrodt found that the

Respondent's teaching was unsatisfactory due to the Respondent's

poor organization, her failure to comply with the music

curriculum which had been adopted, and overall lack of

professionalism. Ms. Butterbrodt, is the principal author of

the music curriculum, provided the curriculum to Ms. Johnson and

observed her teaching.

3. The Respondent taught at Andrew Jackson High School

(Jackson) during the 2002 - 2003 school year. During that year

Prin cipal Jack Shanklin counseled the Respondent concerning her

excessive absences and excessive tardiness, as well as her

failure to comply with the Petitioner's curriculum standards and

other requirements. He found that her lesson plans were

habitually inad equate and "sketchy" and that she failed to

adequately adhere to "standards based teaching" principles and

requirements. She was required to make a syllabus for her

students and never did so. These problems, coupled with her

excessive tardiness and absen ces resulted in her being placed

upon a "Success Plan" designed to improve her performance. She

continued to be deficient, however. Her student progress

reports were never done on time and she was non - compliant with

her Success Plan. After the inaugurat ion of the Success Plan

her lesson plans were still inadequate.

4. On December 16, 2002 the Respondent was given a written

reprimand for her tardiness and excessive absences and was

suspended without pay for five days. At the request of

P rincipal Shank lin, the assistant principal for curriculum,

Ms. Pierce, observed and evaluated the Respondent. Ms. Pierce

concluded that her performance was unsatisfactory. Ms. Pierce

reported that the Respondent failed to comply with the

curriculum standards or with s tandards for punctuality. She

often simply failed to attend her class. In fact, security

became a problem during the Respondent's tenure at Jackson High

School. She was often not at her classroom on time, causing the

students to be locked out of the roo m. The Respondent also

repetitively failed to enforce tardy procedures for students.

Ms. Pierce wrote the Success Plan which the Respondent failed to

comply with for her tenure at the Jackson High School.

5. Principal Shanklin also asked Allen Fletche r, the

assistant principal for curriculum at Jackson to observe and

evaluate the Respondent. He evaluated and monitored her

compliance with the Success Plan. He established that progress

reports for students were not finished on time by the Respondent

an d that the "scan sheets" regarding student academic progress

were habitually late. He established that she was non - compliant

with the Success Plan designed to improve her performance ( See

Exhibit M in evidence). At the conclusion of the 2002 - 2003

school year, P rincipal Shanklin evaluated Ms. Johnson as being

unsatisfactory.

6. Art Lauzon was the principal at Sheffield Elementary

School at times pertinent hereto. The Respondent was assigned,

at her request, as a music teacher at that school for the 200 3 -

2004 school year. A Success Plan was developed for the

Respondent at Sheffield and principal Lauzon personally

administered the plan. During that school year Mr. Lauzon

observed the Respondent using inappropriate teaching methods and

being excessively tardy and absent on multiple occasions. He

had difficulty getting her to attend school reliably. She was

ultimately assigned an unsatisfactory rating for that school

year. Mr. Lauzon found that her lesson plans were never

adequate and that parents were sending letters of complaint to

him.

7. Dr. Mary Jeanette Howle has a doctorate degree in music

education and is nationally board - certified in music education.

Dr. Howle established the applicability of the Sunshine State

Standards for music education as the basis for the curriculum

the Respondent was supposed to employ (as shown by exhibit B in

evidence). She observed the Respondent on three occasions. The

Respondent did not comply with the properly adopted musical

curriculum nor did she employ appro priate teaching standards.

Additionally Jan Moore, a teacher with 35 years' experience in

the Duval County System and 33 years' experience at Sheffield

Elementary was asked to observe the Respondent's teaching.

Ms. Moore found the Respondent's attendance to be unsatisfactory

and that she employed poor teaching methods and practices. She

opined that the Respondent was an unsatisfactory teacher,

although she was a very talented musical performer and a nice

person. Dr. Howle likewise found her to be a warm and loving

person in her relationship with students, but a very

unsatisfactory teacher. Their opinions are most credible and

are accepted as fact. At the conclusion of the 2003 - 2004 school

year at Sheffield Elementary, Ms. Johnson received another

unsat isfactory evaluation, as a result of these observation and

evaluation efforts.

8. Mr. John Williams has 25 years' experience with the

Duval County School Board. He is the director of professional

standards and is responsible for employee discipline. H e

suspended the Respondent for five days without pay due to her

repetitive tardiness. He established that the Respondent's

tardiness, attendance pattern, and absences were unacceptable.

Mr. Williams sponsored Composite Exhibit A which is a two - page

compi lation of the Respondent's absences. She had missed a

total of 356.85 hours at Jackson High School and 259.73 hours at

Sheffield Elementary School. These attendance deficiencies are

grossly excessive. Mr. Williams also established that there had

been ma ny problems in the Respondent's past history with the

Duval County School Board concerning her performance, her

attendance, and tardiness earlier than the past two years and at

least as far back as 1992. Mr. Williams was the custodian of

the Respondent's complete file, including her disciplinary

record, and also established that the Respondent has been a

unsatisfactory teacher for a substantial period of time.

9. The Respondent testified and essentially admitted most

of the allegations of the Petitioner . She acknowledged the

problems with her teaching and the problems with her tardiness

and attendance. She argued, however, that her previous many

years' employment experience with the Petitioner should

ultimately affirm her value as a teacher and justi fy her

retention.

10. Mr. Williams established, particularly on rebuttal,

that the problems found above concerning the Respondent's

performance as a teacher, and her past history of performance

were of long standing as to her attendance, punctuality and

adherence to professional standards. Indeed, if she had made

only one point lower on her evaluation for the 1991 - 1992 school

year she would have received an unsatisfactory rating for that

year as well. In summary, the Petitioner established that the

Res pondent's performance as a teacher, and her professional

competence as a teacher are so deficient as to justify her

termination.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to th is

proceeding. §§ 120.57(1) and 120.569, Fla. Stat. (2004).

12. The overwhelming evidence of record, culminating in

the above findings of fact and largely corroborated by the

Respondent's own admissions, establishes that she has violated

Section 4(e) o f the Act, which provides that a teacher may be

discharged or demoted for any of the violations listed therein.

The conduct charged occurred on a repetitive, continuing pattern

of years' standing, and shows serious professional incompetence

on the part of the Respondent. The Petitioner has made good

faith attempts at mediation of this dispute, which failed, and

it has been established by overwhelming preponderant, competent

evidence that the Petitioner's loss of confidence in the

Respondent's ability to p erform satisfactorily as a teacher is

fully justified. Her deficiency is such as to justify her

termination.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witn esses, and the pleadings and arguments of

the parties, it is, therefore,

RECOMMENDED that a final order be entered by the Duval

County School Board finding that the Respondent, Diane Johnson,

should be discharged from her employment with the Duval County

S chool District.

DONE AND ENTERED this 2nd day of March, 2005, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Park way

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of March, 2005.

COPIES FURNISHED :

John C. Fryer, Jr., Supe rintendent

Duval County School Board

1701 Prudential Drive

Jacksonville, Florida 32207 - 8182

Honorable John Winn

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Vir ginia Baker Norton, Esquire

City of Jacksonville

Office of General Counsel

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

Diane Johnson

2746 Stardust Court, No. 44

Jacksonville, Florida 32211

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All par ties 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.