09-004230 Nassau County School Board vs. Nanette Autry Status: Closed Recommended Order on Thursday, April 22, 2010.

Summary: The greater weight of the evidence indicates that Respondent's employment should be terminated based on incompetence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NASSAU COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-4230

)

NANETTE AUTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on January 28

and 29, 2010, and February 10, 2010, in Nassau County, Florida,

before Suzanne F. Hood, Administrative Law Judge with the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. Ray Poole, Esquire

Jeffrey Wilson, Esquire

Constangy Brooks & Smith

200 West Forsyth Street, Suite 1610

Jacksonville, Florida 32202

For Respondent: Glenda L. Simmons-Jenkins

Qualified Representative

Post Office Box 70

Fernandina Beach, Florida 32034

STATEMENT OF THE ISSUE

The issue is whether Petitioner properly determined that

Respondent's employment as a continuing contract teacher should

be terminated.

PRELIMINARY STATEMENT

In a letter dated February 6, 2009, John L. Ruis, Ed. D.,

Superintendent of Schools in Nassau County, Florida, advised

Respondent Nanette Autry (Respondent) of his intent to recommend

to Petitioner Nassau County School Board (Petitioner) that her

employment as a teacher on continuing contract be terminated

pursuant to Section 1012.33(4)(c), Florida Statutes. The letter

stated that Respondent's employment would be suspended with pay

until Petitioner's next regular meeting on February 12, 2009.

The letter also advised that Dr. Ruis would recommend at the

February 12, 2009, meeting that Respondent's "suspension be

extended without pay, pending a hearing conducted by an

administrative law judge . . . ."

The February 6, 2009, letter did not provide Respondent

with her due process rights pursuant to Sections 120.57, Florida

Statutes. Instead, the letter stated as follows: "If you

decide to contest this action you may be present at any

subsequent hearings, and are entitled to be represented by

counsel of your choice at your own expense."

The February 6, 2009, letter goes on to state that

Dr. Ruis' recommendation is based upon Respondent's

unsatisfactory performance for two school years. The letter

states that it is intended to satisfy the requirements of

Section 1012.33(4)(b), Florida Statutes. 1/

On February 12, 2009, Petitioner issued an Order Deferring

Decision and Transferring Matter to the Division of

Administrative Hearings (DOAH). The Order deferred Petitioner's

decision relating to the termination of Respondent's continuing

contract pending receipt of a recommended order from DOAH.

The February 12, 2009, Order was sent to DOAH under cover

of a letter dated February 13, 2009. The cover letter states

that the case was transferred to DOAH for an administrative

hearing pursuant to Section 1012.33(6)(a)(2), Florida Statutes. 2/

Petitioner's February 12, 2009, Order was received by DOAH

on February 17, 2009. However, the Order was not assigned a

case number or assigned to an Administrative Law Judge because

the Order did not contain the charges against Respondent and did

not include a request from Respondent for an administrative

hearing involving disputed issues of material facts.

In a letter to Respondent dated February 20, 2009, Dr. Ruis

advised that Petitioner had approved Respondent's suspension

without pay pending a DOAH hearing. The letter then stated as

follows in pertinent part: "Should you wish to contest the

charges in this matter, you must submit a written request for a

hearing within fifteen (15) days after receipt of this notice to

my office." The letter refers once again to a hearing pursuant

to Section 1012.33(6)(a)2., Florida Statutes.

In a letter to Petitioner dated March 2, 2009, Respondent

advised Petitioner as follows in relevant part: (a) that she

had not received Petitioner's written charges as required by

Section 1012.33(4)(c), Florida Statutes; (b) that DOAH did not

have jurisdiction because, under Section 1012.33(4)(a), Florida

Statutes, Petitioner had to make the decision; and (c) that she

would decide whether to appeal Petitioner's February 12, 2009,

decision after she received the charges.

In a letter dated April 7, 2009, Petitioner responded to

Respondent's March 2, 2009, letter. In the letter, Petitioner

advised Respondent as follows: (a) that a teacher on continuing

contract could be dismissed pursuant to Section 1012.33(4)(c),

Florida Statutes; (b) that DOAH had authority to hear cases

involving discipline or discharge of teachers on continuing

contracts, but that Petitioner had refused to participate in

such a proceeding, and therefore, had waived her right to a

hearing; and (c) Petitioner had been given adequate notice of

the charges against her.

In a letter to Petitioner dated May 23, 2009, Respondent

continued to allege that Petitioner had not provided her with,

among other things, a response to her requests for information

concerning the charges against her and her rights under the

appeal process.

In a letter dated May 29, 2009, Petitioner responded to

Respondent's May 23, 2009, letter. The response consisted of

enclosing another copy of Petitioner's April 7, 2009, letter.

In a letter to Respondent dated June 16, 2009, Dr. Ruis

advised that he intended to recommend Respondent's dismissal at

Petitioner's meeting on June 25, 2009. The letter also stated

as follows: "The [Petitioner] previously deferred this matter to

[DOAH] for an evidentiary hearing on February 12, 2009. Based

upon your refusal to participate in a DOAH proceeding, my

recommendation to the [Petitioner] will be to consider your

proposed dismissal as uncontested."

In a letter dated July 2, 2009, Respondent advised

Petitioner that she never received written notice of

Petitioner's June 25, 2009, decision to terminate her teaching

contract. Respondent's letter quoted Section 1012.33(4),

Florida Statutes (2009), setting forth her right to written

notice of the legal grounds for the decision. Finally, the

letter advised Petitioner that Respondent intended to appeal the

decision.

On July 15, 2009, Respondent filed a request for

administrative hearing directly with DOAH. The letter enclosed

Respondent's July 2, 2009, letter to Petitioner.

On August 6, 2009, Respondent filed an Amended Petition for

Evidentiary Hearing. According to the document, Respondent

never received a notice of agency decision or a clear point of

entry to request an administrative hearing. The petition also

sets forth the disputed issues of material facts.

On August 6, 2009, Petitioner filed a letter dated

August 6, 2009, asserting the following: (a) that Respondent

had not requested a hearing; (b) that Respondent had not availed

herself of the opportunity to participate in a hearing by

contending that DOAH lacked jurisdiction; and (c) that

Petitioner had taken "final agency action" with respect to

Respondent's employment, depriving DOAH of jurisdiction.

On August 7, 2009, DOAH assigned a case number to this

matter. The undersigned issued an Initial Order that same day.

On August 12, 2009, Respondent filed a response to Initial

Order. On August 14, 2009, Petitioner filed a response to

Initial Order.

On August 19, 2009, the undersigned sua sponte issued an

Order Directing the Filing of Pleadings, and in the Alternative,

Order to Show Cause. The Order reviewed the procedural history

as set forth above, then provided an opportunity for Petitioner

to provide Respondent with the legal basis of the charges

against her and a clear point of entry for Respondent to request

a hearing. The Order provided Respondent with an opportunity

for her to request a hearing. In the alternative, the Order

provided the parties with an opportunity to show cause why

DOAH's file should not be closed due to a lack of jurisdiction

based on Petitioner's failure to provide Respondent with the

charges against her and a clear point of entry to request a

hearing.

Respondent filed a Response to the Show Cause Order on

September 9, 2009. Petitioner filed a Response to Order to Show

Cause and Supporting Memorandum of Law on September 18, 2009.

During a telephone conference on September 24, 2009,

Petitioner maintained its position that Respondent had adequate

notice of the charges against her and her right to a hearing but

that she had waived that right by refusing to participate in a

hearing. Respondent asserted that Petitioner failed to provide

her with the following: (a) notice of statutory charge(s)

against her; (b) a point of entry to request a hearing; and

(c) sufficient notice of her right to appeal.

Later on September 24, 2009, Petitioner filed a letter

stating that it would provide Respondent with formal notice of

the charges against her if the undersigned denied its request to

dismiss this case for lack of jurisdiction.

On September 24, 2009, the undersigned issued an Order

Denying Request to Dismiss for Lack of Jurisdiction based on

Respondent's waiver of a right to a hearing.

On October 6, 2009, Petitioner filed its Formal Notice of

Charges Against Respondent. Respondent filed her request for a

hearing on October 16, 2009.

On October 18, 2009, Respondent filed a Motion for Summary

Judgment. The motion was denied in an Order dated December 23,

2009.

On October 26, 2009, the undersigned issued a Notice of

Hearing. The notice scheduled the hearing for January 20, 2009.

On January 11, 2010, Respondent filed letter relating to

discovery matters. On January 13, 2010, Petitioner filed a

Motion to Compel and a Motion to Continue. After a telephone

conference on January 14, 2010, the undersigned issued an Order

Granting Motion to Compel.

On January 15, 2010, the undersigned issued an Order

Granting Continuance and Re-scheduling Hearing dated January 15,

2010. The Order scheduled the hearing for January 28 and 29,

2010.

The hearing convened as scheduled on January 28 and 29,

2010. Because the parties did not have an opportunity to

complete the presentation of all evidence, the undersigned

issued an Order Re-scheduling Hearing dated February 2, 2010,

scheduling a final day of hearing on February 10, 2010.

On February 5, 2010, Respondent filed a Motion for

Reconsideration of Evidence. The motion was denied on the

record during the hearing on February 10, 2010.

During the hearing, Petitioner presented the testimony of

six witnesses. Petitioner offered 30 exhibits (P2-P31) that

were accepted as evidence. Petitioner's Exhibit P1 was

withdrawn during the hearing.

Respondent testified on her own behalf and presented the

testimony of eight witnesses. Respondent offered the following

exhibits that were accepted as evidence: R2-R10, R12-35, R37-

R73, R76, R80-82, R84-R87, Ra-Rz, and Raa.

Respondent's Exhibits R1, R83, Rbb, Rcc, and Rdd were

withdrawn. Petitioner's Exhibits R11, R36, R74-R75, R77-R79,

and R88-R89 were excluded/proffered.

The final volume of the five-volume Transcript was filed on

March 5, 2010. Petitioner and Respondent filed their Proposed

Recommended Orders on March 25, 2010.

All references hereinafter shall be to Florida Statutes

(2009), except as otherwise indicated.

FINDINGS OF FACTS

1. Petitioner operates, controls, and supervises the

public schools within Nassau County, Florida.

2. Respondent graduated from the University of Florida in

1978 with a Bachelor of Arts degree in English. She began

working for Petitioner in the 1980/1981 school year at Emma Love

Hardee Elementary School. That year, Respondent gave Petitioner

an out-of-field assignment as a teacher of emotionally

handicapped students.

3. Respondent received her Master of Arts degree in

Special Education from the University of North Florida in 1985.

She began working as an Exceptional Student Education (ESE)

instructor at Fernandina Beach High School in the 1983/1984

school term.

4. Beginning with the 1999/2000 school year, Respondent's

primary teaching assignment was as a performing arts instructor

at Fernandina Beach High School. Respondent worked in that

capacity until the 2006/2007 school year when she became a full-

time English and ESE co-teacher. For the 2007/2008 term,

Respondent taught English III and English IV.

5. In 2008/2009, Respondent worked as a regular education

English teacher. She also served as an ESE co-teacher for

intensive language arts.

6. Jane Arnold began working as Principal at Fernandina

Beach High School for the 1998/1999 school term. Ms. Arnold

completed a performance appraisal of Respondent in 1999 that

resulted in an overall unsatisfactory rating.

7. Of particular concern to Ms. Arnold in the 1998/1999

appraisal was Respondent's problem with completing documentation

of lesson plans, including daily instructional strategies as

well as specific examples showing how the subject matter would

be delivered. The failure to provide proper lesson plans made

it difficult to know whether Florida's Sunshine State Standards

were being met.

8. Respondent was also having problems with grading

students' work and recording the grades. Student work papers

were disorganized and some papers were missing. Therefore, it

was hard to discern what work was completed and when it was

completed. The failure to timely grade and record students'

work made it difficult for students to know what they needed to

do to improve.

9. Ms. Arnold subsequently placed Respondent on a

professional development plan (PDP). The one-page PDP required

Respondent to improve three job-service categories. After

Respondent satisfactorily completed the PDP within the

prescribed 90-day period, Ms. Arnold recommended that

Respondent's employment continue.

10. Respondent received a satisfactory or above-

satisfactory rating on all of her teacher performance evaluation

from the 1999/2000 school year through the 2006/2007 school

year. However, Respondent admits that she has had consistent

problems with time management and organization throughout her

career.

11. In October 2007, Respondent received a mini-grant from

the Fernandina Beach High School Foundation. Respondent used

the grant to provide her students with novels she used to teach

literature.

12. Additionally, in October 2007, Respondent earned

continuing education credits toward recertification by attending

a conference sponsored by the Florida Association for Theatre

Arts. During the conference, Respondent participated in the "In

Search of Shakespeare" workshop, which she hoped would prepare

her to introduce Shakespeare as part of the British literature

curriculum.

13. Respondent's problem with providing focused

instruction became critical during the 2007/2008 school year.

Students in Respondent's classes were receiving failing grades

and did not know why. Respondent made errors when reporting

grades and had difficulty submitting them on time.

14. Respondent was easily upset in the classroom. She

would become emotional, lose her temper, and say things that

were less than professional. Ms. Arnold heard disruptions in

Respondent's classroom, which was behind a curtain, behind a

stage, and behind double doors.

15. Curtis Gaus was the assistant principal at Fernandina

Beach High School from 2004 to 2008. Mr. Gaus also witnessed

periods with the level of noise in Respondent's classroom was so

loud that it could be heard in the cafeteria during lunchtime.

16. Respondent was frequently tardy. As a result,

Mr. Gaus would have to unlock Respondent's room and wait with

her students until Respondent arrived.

17. In October 2007, Respondent was required to complete

progress monitoring plans and schedule parent conferences. The

conferences were scheduled on October 14, 15, and 16, 2007.

Petitioner did not turn in the progress monitoring plans until

two months after holding the conferences.

18. As observed by Ms. Arnold and Mr. Gaus, Respondent

frequently failed to provide her students with any explanation

of expectation as to a lesson or any modeling of what it was she

expected the student to do. She provided no immediate feedback

or clarification for the work they were attempting.

19. In January 2008, Ms. Arnold observed Respondent using

instructional time to read questions to students, expecting them

to write the questions as she read them. Ms. Arnold advised

Respondent that she should not use class time to dictate

questions. On January 31, 2008, Ms. Arnold met with Respondent

and gave her type-written comments, suggesting areas for

Respondent to improve classroom instruction.

20. Mr. Gaus observed teacher classroom at least once a

month. Many times Respondent would be unaware that Mr. Gaus was

in her classroom. For the majority of Mr. Gaus' visits,

Respondent's students were off task. On one occasion, while

Respondent was handing out notebooks, the students were playing

video games and talking to each other.

21. In February 2008, Respondent's English IV students

presented a Renaissance Faire. The students researched and

prepared exhibits, presented projects, and competed in a

soliloquy contest sponsored by the National Endowment for the

Arts to earn extra credit toward their semester grade.

22. In support of the Renaissance Faire, Respondent wrote

lesson plans, developed a project rubric, implemented classroom

assignments and kept a record of student project grades.

Respondent invited parents, current and former teachers, as well

as community leaders to act as judges for an evening program

presented by the students.

23. Respondent took a six-week medical leave effective

March 5, 2008. On March 8, 2008, Respondent attended a

teacher's conference entitled Super Saturday. As a result of

participation at the conference, Respondent earned the points

she needed to renew her teaching certificate.

24. Petitioner's Classroom Teacher Assessment Handbook for

the 2007/2008 school year states that a continuing contract

teacher must receive one formal observation, followed within 10

days by a post-observation conference. During the post-

observation conference, a PDP must be developed for teachers

receiving unsatisfactory performance appraisal reports.

25. The formal observation must be completed by March 14.

Performance appraisals are required to be completed and

submitted to the Superintendent no later than April 7. However,

Petitioner was on medical leave on these dates.

26. In May 2008, Respondent provided Petitioner with a

physician's written recommendation for extension of Respondent's

medical leave. Petitioner approved extension of the leave

through August 11, 2008.

27. On May 29, 2008, Ms. Arnold wrote a letter to

Respondent, who was still on medical leave. A Notification of

Less Than Satisfactory Performance was included with the letter.

28. The May 29, 2008, letter reminded Respondent that they

needed to arrange a time in July to complete Respondent's

2007/2008 performance appraisal and to discuss the

implementation of a PDP for the 2008/2009 school year. The

letter refers to written comments that addressed Respondent's

performance and that were provided to her earlier in the school

year.

29. In July 2008, Petitioner sponsored vertical and

horizontal curriculum development workshops for English teachers

of advanced placement and honors students. Some English

teachers of regular/average students also attended the

workshops. Respondent did not receive this training.

30. On July 21, 2008, Ms. Arnold and Respondent met to

discuss Respondent's 2007/2008 performance appraisal and PDP.

The evaluation rated Respondent unsatisfactory with a total

overall score of four out of a possible 100 points.

31. Respondent's 2007/2008 performance appraisal contained

Ms. Arnold's comments in each of the performance categories as

follows:

1. Planning/Preparation: Lack of long and

short term planning[.] Detailed lesson

plans must identify learning objective and

the instructional

strategies/activities/assessment planned to

accomplish the objective. Work should be

clear, compelling and engaging and include

representative works and genres from the

Anglo Saxon period through the present day.

Feedback to students should be timely and

specific. Documentation should be organized

and accessible.

2. Classroom Management: Classroom

environment hostile, negative and chaotic.

3-step discipline procedure not documented.

Records not accurate or timely. Classroom

procedures lack organization. School &

Board policies not consistently enforced.

Room in disarray with papers, books, and

materials in haphazard piles throughout the

room.

3. Assessment/Management: Interventions

for academic, attendance and behavioral

problems lacking. Parent contacts

inconsistent and not documented. 3-step

discipline procedure not implemented.

Effective instructional strategies lacking.

Work is frequently not meaningful or

relevant to unit of study.

4. Intervention/Direct Services: Teacher

read test questions to students, refused to

repeat questions, and subtracted points from

students who requested additional

clarification. Papers are frequently

"lost," performance expectations for

assignments not clearly defined, and grade

information not easily available to students

and parents.

5. Technology: Teacher web site/Edline not

utilized[.] Frequent errors in grade

reporting[.] Difficulty meeting

deadlines[.]

6. Collaboration: Frequently alienates

students and parents by failing to produce

documentation for grades or clarification of

assignments[.] Does not follow Board

Policies for make-up work, and fails to

communicate problems to parents to seek

their assistance.

7. Staff Development: While Ms. Autry has

participated in numerous professional

development activities for effective

instruction, the strategies identified and

recommended have not been implemented with

any consistency in her classroom.

8. Parental Input: Parents express

frustration and impatience with the problems

encountered by their students in Ms. Autry's

class. Clear communication of academic and

behavioral expectations needs to be provided

to all stakeholders. Complaints about

"disparaging comments" made by Ms. Autry

about the students in her classes are

frequent, both from students and teachers.

9. Professional Responsibilities:

Ms. Autry must learn to maintain a

professional demeanor at all times in the

classroom, and must avoid making negative

comments about the students with whom she

works. Improvement of instruction must

become a priority. Extra-curricular

involvement should be limited as it appears

to interfere with time that should be

devoted to her classes. Deadlines need to

be met. Grading and attendance should be

timely and accurate. Curriculum

deficiencies must be addressed.

10. Interim Student Growth: Academic

interventions should be provided and

documented for students experiencing

difficulty in successfully completing the

coursework[.] Parents must be notified and

encouraged to participate in the

intervention strategies. Grades should be

fair, consistent, and easily available to

students and parents.

32. The greater weight of the evidence indicates that

Ms. Arnold's comments on the 2007/2008 performance appraisal

accurately summarized Respondent's professional deficiencies.

Many of Ms. Arnold's comments show the same types of problems

that Respondent has experienced for years.

33. In 1984, Respondent used sarcasm towards students and

failed to submit paperwork on time. In 1988, Respondent had

problems with organization, submitting timely grades, and

completing paperwork accurately and on time. In June 1998,

Respondent was disorganized, late to work, and untimely in

submitting paperwork. In August 1998, Respondent had trouble

with accurate and punctual recordkeeping, using varied and

appropriate educational strategies, and demonstrating effective

classroom management. In the 2001/2002 school term, Respondent

had trouble submitting grades on time.

34. The final comment of Ms. Arnold on the last page of

the 2007/2008 performance appraisal, states as follows:

As a result of an unexpected medical leave,

this evaluation and resulting professional

development plan can not be completed until

Ms. Autry's return to work.

Ms. Arnold and Respondent signed the evaluation on July 21,

2008.

35. Also on July 21, 2008, Ms. Arnold and Respondent

reviewed a 32-page PDP plan. The PDP was designed to meet each

area of deficiency on Respondent's 2007-2008 performance

appraisal.

36. Respondent did not take advantage of the opportunity

to request any specific strategies or otherwise provide input

regarding the PDP on July 21, 2008. However, the next day,

Respondent sent Ms. Arnold an e-mail, requesting Ms. Arnold to

review a folder of documentation to support Respondent's

performance in certain areas.

37. Ms. Arnold responded in an e-mail dated July 22, 2008.

Ms. Arnold agreed to review the materials provided by

Respondent. She also stated that "evaluation specific

activities" might help them revise the PDP as needed.

Ms. Arnold also invited Respondent to utilize the "Comments of

Evaluatee" section of the performance appraisal. In subsequent

e-mail, Respondent and Ms. Arnold agreed on a time to meet.

38. Sometime after receiving the 2007/2008 performance

appraisal, Respondent performed a self-assessment on all

essential performance functions. She gave herself an overall

rating of "needing improvement," with 30 of 100 points.

39. For the 2008/2009 school year, Ms. Arnold assigned

Respondent to teach four sections of English IV, first through

fourth periods. Respondent had some regular education students

and some ESE students in these classes. With only one

preparation, Respondent did not have and should not have needed

a co-teacher to assist her in teaching four classes of English

IV.

40. Respondent also was assigned as a co-teacher in two

intensive language classes, fifth and sixth period. Anita Bass,

a Reading Coach, was primarily responsible for planning and

teaching the two intensive-language classes. Respondent, as a

co-teacher, was supposed to provide assistance in general and to

specifically provide help to ESE students.

41. When Ms. Bass was absent, Respondent would teach the

intensive-language class. On one occasion, Respondent taught a

lesson on fables. On another occasion, Respondent taught a

lesson on neurosurgeon, Dr. Ben Carson.

42. In August 2008, Respondent was assigned a new

classroom. She moved her materials from the room behind the

cafeteria to a more traditional classroom.

43. On September 12, 2008, Ms. Arnold visited Respondent's

classroom for 15 minutes. During that time, Ms. Arnold observed

Respondent reading from a text. Only three students had their

books open and there was very little student participation.

44. On September 15, 2008, Ms. Arnold sent Respondent an

e-mail, advising that her lesson plans and weekly course outline

were past due.

45. On September 16, 2008, Ms. Arnold sent Respondent an

e-mail regarding her classroom observation on September 12,

2008. The message also requested submission of Respondent's

lesson plans and weekly course outline along with a written

explanation as to Respondent's reason for not meeting the

deadline.

46. On October 13, 2008, Ms. Arnold visited Respondent's

classroom. Ms. Arnold found the students talking, sleeping, and

watching CNN because the movie described in Respondent's lesson

plan was over. None of the students had books or papers on

their desks. Respondent stayed behind her desk for

approximately ten minutes then handed some graded brochures back

to the students. Respondent spoke to her students for about

five minutes during the 22 minutes of Ms. Arnold's visit. The

students did nothing during that time.

47. In an e-mail written later on October 13, 2008,

Ms. Arnold noted that Respondent's weekly syllabus dated

October 13, 2008, showed that the students were scheduled to

watch a movie then complete a reading guide and a quiz. The e-

mail discussed Ms. Arnold's observations earlier in the day and

requested revised lesson plans for the week. Referring to the

lesson observed that morning, Ms. Arnold also requested an

explanation of the learning objectives and teaching strategies

employed by Respondent. Ms. Arnold reminded Respondent that

required tasks were to be completed in a timely and accurate

fashion.

48. A subsequent e-mail dated October 13, 2008, stated

that Ms. Arnold had received Respondent's ESE Mainstream Report

for four students. According to the message, the reports were

given to Respondent on September 29, 2008, were due on

October 3, 2008, and not given to the teacher of record until

October 7, 2008.

49. Because the Mainstream Reports were incomplete for

several students, Mr. Arnold requested Respondent to review her

Professional Growth Plan, requiring tasks to be completed in a

timely and accurate fashion. Ms. Arnold also requested

Respondent to provide the missing information.

50. On October 21, 2008, Ms. Arnold sent Respondent an e-

mail, requesting lesson plans that were due on October 17, 2008.

51. Joyce Menz is Petitioner's Director of Staff and

Program Development. In November 2008, Ms. Menz provided

Respondent with an opportunity to attend a workshop related to

classroom management. Petitioner did not attend the workshop.

52. In the fall of 2008, Ms. Menz hired Jimi Buck, a

retired language arts resource teacher and reading curriculum

specialist, to sit and plan a lesson with Respondent. Ms. Buck

then demonstrated instruction of the lesson plan in one of

Respondent's classes.

53. Ms. Menz arranged for Respondent to observe Ms. Drake,

an English IV teacher at another school. Respondent and

Ms. Drake spent some time going over Ms. Drake's yearlong plan

of how and what she would be teaching. Ms. Menz hired a

substitute for Respondent's classes so that she could consult

with Ms. Drake.

54. Ms. Menz hired Ms. Mealing, another consultant, to

meet with Respondent and work on a week of lesson plans. During

their time together, Respondent and Ms. Mealing viewed and

discussed a DVD entitled "Strategies for Secondary English

Teachers." Ms. Menz purchased the DVD specifically for the

purpose of helping Respondent. Ms. Menz provided a substitute

for Respondent's classes while she reviewed the materials with

Ms. Mealing.

55. Ms. Arnold made it possible for Respondent to observe

Ms. Barlow's classes at Fernandina Beach High School, by hiring

a substitute for one-half day. Ms. Barlow taught Advanced

Placement and English IV Honors.

56. Ms. Arnold also provided additional help to Respondent

when school began in the fall of 2008. First, Ms. Arnold did

not assign Respondent as a teacher of record for any ESE

students. As a teacher of record, Respondent would have been

required to keep track of what was happening with her ESE

students.

57. Ms. Arnold also excused Respondent from participating

in any extracurricular activities. Ms. Arnold hoped that

Respondent would devote all of her energy to improving her

instruction.

58. At times, Ms. Arnold would go into Respondent's class

to get it under control in response to disruptive behaviors.

Ms. Arnold then would make suggestions to Respondent about how

to keep control, reminding her of the need to use the three-step

discipline procedure.

59. On November 6, 2008, Ms. Arnold and Respondent signed

a performance appraisal. Respondent's overall rating on the

evaluation was unsatisfactory. Respondent indicated that she

thought her overall rating should have been "needs improvement,"

which would have still required a plan of assistance.

60. Mr. Gaus observed Respondent during the PDP period and

completed a performance evaluation. Mr. Gaus found that there

was no improvement in keeping students on task. During the

post-observation conference with Respondent, she continually

acknowledged that she had problems with administrative tasks,

lesson plans, submitting grades and managing the behavior of her

students.

61. On November 17, 2008, Ms. Menz observed Respondent's

classroom. Ms. Menz found that Respondent's overall planning

was not based on students' needs and was not clear and engaging.

Ms. Menz observed two students who appeared to be sleeping and

another texting. While Ms. Menz was in Respondent’s class, six

students lost their early-lunch privilege.

62. On the November 17, 2008, performance appraisal

prepared by Ms. Menz, Respondent received an overall rating of

unsatisfactory. Respondent made a comment on the evaluation

form, indicating that she had learned a lot from the post-

observation conference with Ms. Menz and looked forward to

receiving further assistance.

63. On November 21, 2008, Mr. Gaus, sent Respondent an e-

mail. The message advised that Respondent had not posted her

grades on Edline since October 21, 2008, and should do so as

soon as possible. Edline is the computer program that

Petitioner uses to record grades.

64. Despite the PDP, Respondent's deficiencies did not

improve. In her semester exam, she used materials that the

students had not read. When the students questioned Respondent,

she told them, "If you want to read it, look it up on the

internet."

65. In response to the PDP, Respondent developed a

behavioral incentive plan to implement in the reading classes

where she was the co-teacher. Respondent sent a letter to

inform parents about the plan.

66. The behavior incentive plan sought to reward positive

student behavior with bathroom passes, snacks, and paper money.

However, there were school rules against having food in the

classroom and allowing bathroom passes except for emergencies.

Moreover, the plan was not well received because the students

thought Respondent was tallying their actions.

67. As a co-teacher, Respondent was required to help

implement a computer-directed reading program. Because

Respondent was unable to provide assistance with the program, a

third person had to be called in to perform the task for

Respondent.

68. An additional concern of Ms. Arnold's was that

Respondent continued to ignore Petitioner’s policy regarding

makeup work. Ms. Arnold was also concerned that Respondent was

losing her temper and taking points from students who asked for

clarification on assignments.

69. In January 2008, Ms. Arnold observed Respondent's

classroom again. Her comments on the performance appraisal were

as follows:

1. Planning/Preparation: Second 9-weeks

spent on "Pygmalion" [.] Based on lesson

plans, there were no novels, short stories,

or poems by British writers included in the

material taught (See eval. #1)[.] Classroom

activities lack relevance and timeliness.

(See eval. #2) Strategies and Objectives

listed in lesson plans were not reflected in

actual classroom activities.

2. Classroom Management: Inappropriate

student behavior during classroom

observation was addressed and corrected by

instructor. Developed behavioral incentive

plan for students in Reading Classes with

reward system for positive student behavior

and achievement (bathroom passes, snacks,

paper money)[.]

3. Assessment/Management: Portions of the

semester exam do not correlate to stated

learning objectives, learning strategies, or

class activities listed in the semester

outline, lesson plans, or weekly syllabus.

Students have not read "Julius Caesar" or

"Heart of Darkness." Neither have they

studied the three poems they are to compare.

Students were told to "look up" the meaning

of the literary terms that they were given

to use in analyzing the poems on the exam.

Many questions given to student in advance.

4. Intervention/Direct Services: Ms. Autry

does not demonstrate knowledge and

understanding of the English IV curriculum.

Significant works by British writers have

not been taught. (See observation #1)

Pacing is slow, with 9-weeks spent on

"Pygmalion" to the exclusion of British

novels, short stories and poems. Activities

are not aligned with student needs. In-

depth skills development is lacking.

5. Technology: Ms. Autry utilizes

technology for administrative and

instructional tasks[.] However, on

December 16th, Edline grades had not been

updated since 10/23[.] Also on that date,

the last weekly syllabus posted was for week

11.

6. Collaboration: Ms. Autry's written

complaints about ESE co-workers in which she

stated the need for colleagues to provide

accommodation for her [medical condition]

resulted in strained working relationships.

Ms. Autry attends department meeting and

faculty meetings as outlined in the Plan of

Assistance.

7. Staff Development: Completed training

in ESE/IEP, Tablet PC, Edline/Grade Quick

and ELMO. Received direct training by

Ms. Menz, Ms. Mealing & Ms. Buck to address

instructional deficiencies. Declined

suggested training opportunities in

Discipline & Motivation Strategies, Behavior

Management Strategies, Classroom Management,

Lesson Planning, Parental Input, Classroom

Assessment and Professional

Responsibilities. (Based on identified

needs in PDP and classroom observations.)

8. Parental Input: Edline/Grade Quick

posting irregular. Few documented parent

contacts.

9. Professional Responsibilities:

Ms. Autry is teaching four sections of

English IV and is the co-teacher in two

sections of Reading taught by the Reading

Coach. She in (sic) not the teacher of

record for any ESE students. During the 90-

day plan of assistance, lesson plans were

submitted late 15 out of 18 weeks. Grades

were not posted in a timely fashion on

Edline. (Ms. Autry was excused from

participating in extra curricular activities

in order to focus on her plan of assistance.

10. Interim Student Growth: Students who

had not passed the FCAT were assigned to the

Reading Coach who provided individual/group

instruction during the first 9-weeks. 96%

of Ms. Autry's students received semester

grades of 70% or higher. No other

assessments are available at this time.

Ms. Autry and Ms. Arnold signed the performance appraisal dated

January 7, 2009. Ms. Autry requested that Ms. Arnold attach

information about a disability and its accommodations to the

evaluation. Ms. Arnold complied with the request.

70. Two weeks before the expiration of the PDP, Respondent

requested a two-month extension because she could not comply

with the plan. Respondent's request was denied.

71. Petitioner's Superintendent, Dr. John Ruis, placed

Respondent on paid suspension when she did not improve.

Dr. Ruis then recommended that Respondent be suspended without

pay pending termination.

CONCLUSIONS OF LAW

72. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

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

1012.34(3)(d)2.b.(II), Florida Statutes.

73. The first question is whether Petitioner committed

procedural and or substantive errors that preclude consideration

of the merits of this case. Specifically, Respondent argues

that Ms. Arnold failed to conduct a formal classroom observation

by March 14, 2008, followed by a post-observation conference

within 10 days to discuss the performance appraisal. Respondent

also argues that Ms. Arnold failed to send a copy of the

performance appraisal to Petitioner's personnel office by

April 7, 2008.

74. Respondent took a medical leave of absence effective

March 5, 2008, and extended that leave through August 11, 2008.

Therefore, Petitioner cannot be faulted for failing to meet the

deadlines set forth above.

75. The greater weight of the evidence indicates that

Respondent was aware of her unsatisfactory performance based on

Ms. Arnold's November 2008 and January 2009 performance

appraisals, as well as her written comments addressing

Respondent's performance earlier in the school year. Respondent

also was aware that she had not performed satisfactorily when

she did not complete the PDP in 90 days and when Petitioner did

not extend the time for her to do so. Under the facts of this

case, Petitioner's failure to follow the timelines set forth in

the 2007/2008 Classroom Teacher Assessment Handbook does not

preclude consideration of the merits.

76. Petitioner has the burden of proving by a

preponderance of the evidence that Respondent's continuing

contract as a teacher should be terminated based on a charge of

incompetency. See Dileo v. School Bd. of Dade County , 569 So.

2d 883 (Fla. 3d DCA 1990); § 1012.33(4)(c), Fla. Stat.

77. Incompetency is defined in Florida Administrative Code

Rule 6B-4.009(1), as follows in relevant part:

(1) Incompetency is defined as

inability or lack of fitness to discharge

the required duty as a result of

inefficiency or incapacity . . . Such

judgment shall be based on a preponderance

of evidence showing the existence of one

(1) or more of the following:

(a) Inefficiency: (1) repeated

failure to perform duties prescribed by law

(Section 231.09, Florida Statutes)[former

statute]; (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 . . . .

78. Respondent admitted that she has always had problems

with organization and completing paperwork on a timely basis.

In the 2008/2009 school year, Respondent failed to comply with

the requirements of long and short term planning. As for the

plans she created, Respondent failed to adequately teach the

required content of the Sunshine State Standards. She also

failed to satisfactorily and effectively implement her plans in

the classroom.

79. Respondent was unable to consistently maintain

discipline in her classes. The environment in Respondent's

classroom was frequently hostile, negative, and chaotic. At

times, Respondent failed to maintain a professional demeanor.

80. Respondent's student assessment strategies were weak,

and at times, confusing to the students. Respondent never

developed a system to make grade information easily available to

students and parents.

81. Respondent made some improvement in learning to use

the computer software for recording grades. However, she made

frequent errors and had difficulty meeting deadlines.

82. Respondent participated in numerous professional

development activities. Nevertheless, Respondent failed to

consistently implement the new instructional strategies.

83. In this case, the greater weight of the evidence

indicates that Respondent is incompetent. Petitioner provided

Respondent with more than enough assistance to help her meet the

goals of the PDP. Despite the extraordinary help, Respondent

did not show adequate improvement.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order terminating

Respondent's employment as a teacher.

DONE AND ENTERED this 22nd day of April, 2010, 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 22nd day of April, 2010.

ENDNOTES

1/ Unsatisfactory performance is not one of the enumerated

grounds for terminating a continuing contract as set forth in

Section 1012.33(4)(c), Florida Statutes (2009).

2/ Section 1012.33(6)(a), Florida Statutes (2009), does not

apply to teachers on continuing contract.

COPIES FURNISHED :

Dr. John L. Ruis

Superintendent of Schools

Nassau County School District

1201 Atlantic Avenue

Fernandina Beach, Florida 32034

Leonard T. Hackett, Esquire

Vernis & Bowling

4309 Salisbury Road

Jacksonville, Florida 32216

Nanette S. Autry

2352 Cashenwood Drive

Post Office Box 1025

Fernandina Beach, Florida 32035

Glenda L. Simmons-Jenkins

96091 L.S. Morrison Drive

Post Office Box 70

Fernandina Beach, Florida 32034

Ray Poole, Esquire

Constangy, Brooks & Smith

200 West Forsyth Street, Suite 1610

Jacksonville, Florida 32202

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.