09-000728TTS Collier County School Board vs. Deborah Schad Status: Closed Recommended Order on Wednesday, September 2, 2009.

Summary: Absence of evidence of poor standardized test scores prevented Respondent's termination under Subsection 1012.34(3), Florida Statutes, but the evidence showed just cause for terminaiton under Subsection 1012.33(1)(a).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COLLIER COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-0728

)

DEBORAH SCHAD, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of the case for the Division of Administrative

Hearings (DOAH) on July 16, 2009, in Naples, Florida.

APPEARANCES

For Petitioner: Jon D. Fishbane, Esquire

Collier County School Board

5775 Osceola Trail

Naples, Florida 34109

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

The issue is whether Petitioner may terminate Respondent’s

employment as an instructional employee under a professional

services contract either for failure to timely correct alleged

performance deficiencies pursuant to Subsection 1012.34(3),

Florida Statutes (2008), 1 or for just cause, within the meaning

of Subsection 1012.33(1)(a).

PRELIMINARY STATEMENT

On December 8, 2008, Petitioner, Collier County School

Board (School Board), informed Respondent, Deborah Schad, that

the superintendent would recommend at a School Board meeting to

be conducted on January 15, 2009, that the School Board

terminate Respondent’s employment for failing to satisfactorily

complete her performance deficiencies pursuant to

Subsection 1012.34(3) and for just cause defined in

Subsection 1012.33(1)(a). The School Board approved the

superintendent’s recommendation. Respondent timely requested an

administrative hearing, and the School Board referred the matter

to DOAH to conduct the hearing.

At the hearing, the School Board presented the testimony of

four witnesses and submitted 19 exhibits for admission into

evidence. Respondent called no witnesses and submitted no

exhibits into evidence. The parties jointly stipulated to the

admission of the Collective Bargaining Agreement (CBA).

The identity of the witnesses and exhibits, and the rulings

related to each, are reported in the one-volume Transcript of

the hearing filed with DOAH on August 11, 2009. The parties

timely filed their respective Proposed Recommended Orders on

August 21, 2009.

FINDINGS OF FACT

1. The School Board employed Respondent as a resource

teacher at Village Oaks Elementary School (Village Oaks) from

the start of the 2003-2004 school year until January 15, 2009.

Ms. Dorcas Howard was the principal at Village Oaks during

Respondent’s employment. Ms. Howard served as principal for

20 years and was responsible for evaluating teachers, including

Respondent.

2. Respondent’s duties as a resource teacher at Village

Oaks included working with elementary school students who were

not proficient in reading and math. Some of the students that

Respondent taught read and spoke English as a second language.

3. Respondent typically met with students in breakout

sessions comprised of groups of five. Classroom teachers

determined which students were to attend Respondent’s breakout

sessions on the basis of the individual needs of each student.

Respondent typically spent 30 minutes with each group.

4. The Notice of Termination dated December 8, 2008,

provides, in relevant part, that the School Board is relying on

two statutory grounds for the termination of Respondent’s

employment contract. One ground is that Respondent allegedly

failed to correct performance deficiencies in violation of

Subsection 1012.34(3). The second ground alleges that just

cause, defined in Subsection 1012.33(1)(a), exists to terminate

Respondent’s employment.

5. For reasons stated hereinafter, a preponderance of the

evidence does not support a finding that the alleged performance

deficiencies violate Subsection 1012.34(3). However, a

preponderance of evidence does support a finding that just cause

exists to terminate Respondent’s employment pursuant to

Subsection 1012.33(1)(a).

6. The alleged violation of Subsection 1012.34(3) is based

on an evaluation system known as the Collier Teacher Assessment

System (CTAS). CTAS consists of 12 educator practices

that are evaluated as inadequate, developing, and

professional/accomplished.

7. The CTAS evaluation of Respondent for the 2007-2008

school year resulted in developing marks in four practice areas:

assessment, communication, learning environment, and planning.

Assessment, planning, role of the teacher, and communication are

integrated concepts.

8. Respondent was often late in picking up students from

regular classrooms for breakout sessions. On those occasions,

Respondent did not provide 30 minutes of instruction to that

group of students.

9. Respondent was often unprepared. Respondent routinely

did not explain the goals of the session. Respondent did not

provide timely assessments to regular classroom teachers, and

Respondent did not provide students with directions before

reading and did not review the subject matter of the specific

class.

10. Respondent routinely did not review tests or prepare

test results. Respondent frequently could not answer questions

from the principal and other teachers about how students

performed on tests.

11. Respondent had no individualized lesson plans.

Students often informed her where they were in a given text.

Respondent often gave students inappropriate assignments.

12. A professional services contract instructional

employee who receives three or more developing marks is placed

As a consequence of receiving four developing marks, Respondent

was placed on Strand 3. Ms. Deborah Terry, director of staffing

for Human Resources, Recruitment and Retention, notified

Respondent that Respondent had been placed on Strand 3.

13. Respondent had 90 days from the beginning of probation

to correct identified deficiencies. A professional assistance

team at Village Oaks was organized to assist Respondent. The

principal directed Respondent to focus on non-proficient, third

grade students.

14. Throughout the probationary period, Ms. Howard

observed that Respondent did not engage students in class.

Respondent exhibited poor planning, and Respondent lacked

adequate class preparation in reading.

15. A high percentage of students were second language

students, and Respondent did not have appropriate English

Language Learners (ELL) strategies in place. Nor did Respondent

have appropriate vocabulary instruction and developmental plans

for her students.

16. Respondent allowed students to engage in round robin

reading in which remedial, struggling readers read one-after-

the-other. Respondent did not discuss or prepare the students

for what they were to read. Respondent did not use word follow

up. Respondent did not engage students in discussion, and

Respondent did not introduce word drill or word-attack skills to

students. Respondent did not provide individualized,

differentiated instruction or lesson planning for students.

17. The students in Respondent’s sessions were not gaining

academically. The principal and other members of the

professional assistance team discussed their concerns with

Respondent individually and in group sessions.

18. Respondent did not provide regular classroom teachers

with test results or assessments of students. The failure to

provide regular test results and assessments was problematic.

Resource intervention grades were important to each student’s

overall grade. Resource intervention grades were averaged in to

overall grades. The failure to receive grades created a gap in

the reporting for intervention instructional time.

19. During the professional assistance team meeting

conducted on September 24, 2008, the team reviewed with

Respondent the team concerns that lesson plans turned in were

not used for instruction, follow up activities were

inconsistent, daily activities were not based on the academic

needs of the children, no formal assessments or reviews of

student performance were prepared, and Respondent was

continually late in picking up her students.

20. Ms. Olwen Stewart-Bell, a team member, provided

Respondent with a timer to assist Respondent in picking up

students in a timely manner. In many instances, however,

Respondent forgot to turn on the timer.

21. By the end of September 2008, there was no indication

of student progress. In addition, regular classroom teachers

had become reluctant to send their students to Respondent for

instruction.

22. By the end of October 2008, Respondent had not

responded to advice and assistance and had not improved. There

were several times that Respondent was on the phone when she

should have been teaching students. Respondent fell asleep in

class, and Respondent was abusive to low-achieving students.

23. At the meeting on October 30, 2008, it was evident

students were not improving under Respondent’s tutelage.

Planning remained poor, assessments did not drive instruction,

no differentiated instruction was being provided, and regular

classroom teachers did not want Respondent teaching their

students.

24. At the end of the probationary period, the principal

determined that of the 12 educator accomplished practice areas,

Respondent should receive inadequate marks in assessment,

communication, planning, and the role of the teacher.

Respondent was still developing in three other areas:

continuous improvement, learning environment, and knowledge of

subject matter. Ms. Howard informed Respondent of the

evaluation.

25. The evaluation fell below appropriate standards

provided for in CTAS and set forth in Article 5.03 of the CBA.

Article 5.03(f)(4)(vi) of the CBA provides, in relevant part:

[T]en or more EAP areas must be rated at the

professional level and no EAP may be at the

inadequate level. Employees not meeting

these criteria will be recommended for

termination.

As a consequence of Respondent’s failure to correct identified

deficiencies and meeting acceptable standards, the principal

recommended to the superintendent that Respondent be terminated

from her employment.

26. The evaluation of Respondent under Subsection

1012.34(3) was not based primarily on standardized testing data

showing that students of Respondent performed poorly on

standardized tests. The students that Respondent worked with

were those most at risk of failing the Florida Comprehensive

Assessment Test (FCAT). However, the School Board submitted no

evidence that any of the students under Respondent’s tutelage

performed poorly on standardized tests, including the FCAT.

Assuming arguendo that any of the students under Respondent’s

instruction performed poorly on standardized tests, such as the

FCAT, Petitioner submitted no evidence of a nexus showing that

Respondent’s instruction caused the poor performance on annual

standardized testing.

27. A preponderance of evidence supports a finding of just

cause to terminate Respondent’s professional services contract

pursuant to Subsection 1012.33(1)(a). Respondent demonstrated

an inability to discharge her educational duties by repeatedly

failing to perform her educational duties and by repeatedly

failing to communicate and relate to children in her classroom.

Respondent deprived children in her classroom of a minimal

educational experience.

CONCLUSIONS OF LAW

28. DOAH has jurisdiction over the subject matter of and

parties to this proceeding. §§ 120.569, 120.57(1), and

1012.33(b), Fla. Stat. (2009). DOAH provided the parties with

adequate notice of the final hearing.

29. Petitioner has the burden of proof in this proceeding.

Petitioner must show by a preponderance of the evidence that

Respondent committed the acts alleged in the Notice of

Termination and the reasonableness of the proposed penalty.

Sublett v. Sumter County School Board , 664 So. 2d 1178 (Fla. 5th

DCA 1995).

30. For reasons stated in the Findings of Fact and not

repeated here, a preponderance of evidence does not support a

finding that the School Board should terminate the employment

contract of Respondent for the alleged violation of Subsection

1012.34(3). A preponderance of the evidence does not support a

finding that the School Board applied Subsection 1012.34(3) by

relying first and foremost upon data showing that Respondent’s

students performed poorly on standardized tests, including the

FCAT, as the primary basis for the performance-related

termination of a tenured teacher. See Young v. Palm Beach

County School Board , 968 So. 2d 38 (Fla. 4th DCA 2007); Sherrod

v. Palm Beach County School Board , 963 So. 2d 251 (Fla. 4th DCA

2006). See also Miami-Dade County School Board v. Hannibal

Rosa , Case No. 08-1495 (DOAH December 16, 2008), and Miami-Dade

County School Board v. Sergio H. Excalona , Case No. 04-1656

(DOAH November 23, 2006)(for similar decisions after statutory

amendments in 2004).

31. A preponderance of the evidence does support a finding

that Petitioner should terminate the employment contract of

Respondent for just cause within the meaning of Subsection

1012.33(1)(a) and Florida Administrative Code Rule 6B-4.009(1).

The factual basis of this conclusion is discussed in the

Findings of Fact and not repeated here.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Collier County School Board enter a

final order terminating Respondent’s professional services

contract as an instructional employee for just cause defined in

Subsection 1012.33(1)(a).

DONE AND ENTERED this 2nd day of September, 2009, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 2nd day of September, 2009.

ENDNOTE

1/ References to subsections, sections, and chapters are to

Florida Statutes (2008), unless otherwise stated.

COPIES FURNISHED :

Jon D. Fishbane, Esquire

Collier County School Board

5775 Osceola Trail

Naples, Florida 34109

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Dennis L. Thompson, Superintendent

Collier County School Board

5775 Osceola Trail

Naples, Florida 34109-0919

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.