10-001351TTS Taylor County School Board vs. Geraldine Roberson Status: Closed Recommended Order on Tuesday, February 22, 2011.

Summary: Petitioner proved that it had just cause to terminate Respondent's employment as a teacher.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TAYLOR COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 10 - 1351

)

GERALDINE ROBERSON , )

)

Respondent . )

)

RECOMMENDED ORDER

A formal heari ng was conducted in this case on November 17,

2010, and December 6, 2010, in Perry, Florida, before Suzanne F.

Hood, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Angela M. Ball, Esquire

Post Office Box 734

Perry, Florida 32348

For Respondent: Ronald G. Stowers, Esquire

Levine & Stivers, LLC

245 East Virginia Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue is whether Petitioner properly determined that

Respondent's employment should be terminated.

PRELIMINARY STATEMENT

By letter dated February 5, 2010, Paul Dyal, Superintendent

of Taylor County School District, a dvised Respondent Geraldine

Roberson (Respondent) that she was suspended with pay from her

position as a teacher. The letter stated that Petitioner Taylor

County School Board (Petitioner ) would determine at a

February 16, 2010, meeting whether to terminat e her employment

effective February 17, 2010. According to the letter, the

proposed term ination was based on RespondentÓ s insubordination

as outlined in a letter dated February 3, 2010 , from George

Clayton, Principal at Perry Primary School.

On Februar y 16, 2010, Petitione r voted to terminate

RespondentÓ s employment. In a letter dated February 26, 2010,

Respondent requested a formal administrative hearing.

Petitioner referred RespondentÓ s hearing request to the

Division of Administrative Hearings on March 17, 2010. A Notice

of Hearing dated March 29, 201 0, scheduled the hearing on

May 17, 2010. After several continuances, the undersigned

issued a Notice of Hearing, sche duling the hearing for

November 17, 2010.

The hearing was held in part on Nov ember 17, 2010. On

November 18, 2010, the undersigned issued an Order Continuing

and Rescheduling Hearing. The Order scheduled the final day of

the hearing for December 6, 2010.

During the hearing, Petitioner presented the testimony of

eight witnesses , including Respondent. Petitioner offered 65

exhibits that were accepted as evidence.

Respondent testified on her own behalf. Respondent offered

ten exhibits, R1 - R6 and R8 - R11, that were accepted as evidence.

The Transcript was filed on Ja nuary 5, 2 011 . The parties

filed their Proposed Recomm ended Orders on February 7, 2011 .

Hereafter, all references shall be to Florida Statutes

(2009) unless otherwise noted.

FINDINGS OF FACT

1. At all times material here, Petitioner was the

constitutional en tity authorized to operate, control, and

supervise the public schools in Taylor County, Florida. A

Master Teacher Contract between Petitioner and the Taylor

Education Association governs relations between Petitioner and

its teachers.

2. Respondent is an educator, with 35 years of teaching

experience. She is certified by the Florida Department of

Education to teach students enrolled in the Exceptional Student

Education (ESE) program. Respondent has at least 20 years of

experience in teaching ESE stude nts.

3. During the 2009 - 2010 school year, Petitioner employed

Respondent as an annual contract teacher at Perry Primary

School. Pursuant to the contract, Petitioner hired Respondent

to work from August 17, 2009, to June 9, 2010.

4. RespondentÓs cl ass during the 2009 - 2010 school year was

made up of students with varying exceptionalities. The

exceptionalities included handicaps such as specific learning

disabilities, attention deficit disorder, autism, or emotional

or physical handicaps. The class consisted of students in

kindergarten, first, and second grades.

5. At the outset of the 2009 - 2010 school year, Respondent

was assigned eight students, two of which had a full - time

personal assistant. Just prior to the Christmas break,

Respondent was as signed another ESE student with a full - time

personal assistant.

6. The primary responsibility of the personal assistants

was to help their designated students function successfully and

safely in the classroom. Additionally, the personal assistants

wer e supposed to support the classroom teacher as needed.

7. In addition to the personal assistants, RespondentÓ s

class utilized the services of Behavioral Management Center

(BMC). The BMC consultants visited RespondentÓ s classroom

frequently to develop and monitor the implementation of behavior

modification plans for certain students. The school

psychologist also visited the classroom frequently to assist the

teacher and students.

8. Petitioner uses many computer software programs for the

testing an d monitoring of student progress. The computer

programs are necessary in order to comply with Florida

Department of Education requirements. The computer programs are

used throughout the state and require data entry and

transmission at several points in t he academic year.

9. Gradequick is a program that enables teachers to

electronically enter student grades. Among other tasks, the

program calculates grade point averages. The grades and

averages are then entered in the Edline program that is

accessib le by both parents and students. Administrators can

access these programs to ascertain the level of progress by a

particular class or student.

10. For the 2009 - 2010 school year, the initial Gradequick

and Edline training was conducted the first wee k o f September

2009. Respondent attended the training session.

11. Tienet is a computer program used to assist with the

drafting of individual education plans (IEPs) for ESE students.

It is a web - based program that al so is used to monitor a

studentÓ s pr ogress in accomplishing the goals and objectives on

the student's IEP. Tienet generates a parent report that goes

out with report cards. All students in Respondent Ó s 2009 - 2010

class were learning in accordance with an IEP.

12. Aimsweb is a computer p rogram that monitors compliance

with state and federal guidelines regarding student achievement

and progress in reading and math. Aimsweb requires that all

students be tested at the beginning, middle and end of the

school year. The teacher uses the initi al test or Ð probe Ñ to

determine the child's baseline. Other probes are performed on a

weekly basis throughout the school year. Petitioner can use the

data to determine if a child is academically at risk and, if so,

to implement interventions to address a ny deficiency.

13. FAIR is a state - mandated assessment test in reading

that also is given three times a year. FAIR provides for an

exemption for students who are severely limited academically.

However, Petitioner always completes the initial FAIR tes t for

all students, regardless of academic ability. After assessing

the results of the first probe, Petitioner can then determine

whether students will be exempted from further testing.

14. In the 2009 - 2010 school term, Jack Palaio was an ESE

resource teacher and the Perry Primary School technology

coordinator. As technology coordinator, Mr. Palai o had to make

sure the teachersÓ and studentsÓ computers were up and running.

He also trained staff and teachers on the use of the computer

software program s referenced above. Mr. PalaioÓ s

responsibilities included monitoring data collection and data

transmission from the classrooms.

15. On or about September 2, 2009, Mr. Palaio requested

that Respondent provide him with a list of her students.

Mr. Pala io needed the names to made sure the students were

placed in the proper Gradequick files. As of September 14,

2009, Respondent still had not provided Mr. Palaio with the list

of names.

16. In addition to the training sessions taught when

school began, Mr. Palaio offered to assist Respondent on several

occasions starting at the beginning of the year. At times,

Respondent sought help from Mr. Palaio in person or by email.

17. By mid - year, it should not have taken Respondent but a

few minutes per stud ent to enter weekly data on Gradequick.

Aimsweb should have required no more than five minutes per

student on a weekly basis. The FAIR data requires very little

time because the teacher enters it while testing the students.

Tienet data entry takes even less time because it requires

formulation of IEPs only once a year and review and maintenance

quarterly.

18. Pam Padgett was the assistant p rincipal at Perry

Primary School. On September 15, 2009, Ms. Padgett advised

Respondent to provide Ms. Pa dgett with a copy of RespondentÓ s

class schedule. The schedule was necessary to show the times

that Respondent intended to teach specific subject areas.

19. On September 15, 2009, Ms. Padgett also informed

Respondent that her students would need to take the initial FAIR

and Aimsweb probes in order to establish baselines. Ms. Padgett

advised Respondent that other staff members would do this

testing for Respondent.

20. In Se ptember 2009, two of RespondentÓ s students were

exempt from taking the initial FAI R reading probe because of

their disabilities. The two students were supposed to be tested

using an alternative assessment kno wn as the Brigance.

PetitionerÓ s staff decided to test the two students on the FAIR

material, using a paper test, in addition to the Brigance test.

21 . The Brigance test, in booklet form, was supposed to be

given three times a year. Teachers used a di fferent color to

score studentsÓ tests each time it was administered.

22 . On September 17, 2009, Mr. Palaio requested Respon dent

to see him about testing her st udents using the Brigance.

Mr. Palio also offered to help Respondent set up Edline for her

class.

23 . Alise Thompson is the Intervention Resource Compliance

Specialist at Perry Primary School. In the 2009 - 2010 scho ol

year, she was responsible for ensuring that teachers properly

drafted IEPs using Tienet and for scheduling IEP meetings.

24 . On September 21, 2009, Ms. Thompson instructed

Respondent to prepare the IEP (goals and objectives) for a

student. She remi nded Respondent that the IEP meeting for the

student was scheduled for September 25, 2009.

25 . On September 22, 2009, Mr. Palaio advised Respondent

that her class was set up in Gradequick so that she could start

adding weekly grades. Mr. Palaio asked Respondent to see him

for information about entering the grad es in Gradequick. On

September 29, 2009, Mr. Palaio again reminded Respondent that

she ne eded to enter her grades in Gra dequick so that she could

send home midterm progress reports the next day.

26 . On September 30, 2009, Mr. Palaio advised Respondent

that her kindergarten student needed to have grades entered in

the computer on a weekly basis for reading now and for reading,

spelling, and math beginning in January. He also reminded

Responde nt that her first and second grade students needed

grades for reading, math, and spelling.

27 . As of September 30, 2009, Mr. Palaio had prepared the

midterm reports for RespondentÓ s first and second grade

students. He also offered to do the same for t he kindergarten

student if Respondent would send him the necessary information.

Mr. Palaio reminded Respondent that she had been provided with

additional computer training in Edline and needed to post her

grades in Gradequick on a weekly basis.

28 . Th e September 30, 2009, email to Respondent told her

to put her Briganc e booklets back in the studentsÓ cumulative

folders in the school office. This was necessar y in order to

ensure their safe keeping.

29 . On October 26, 2009, Perry Primary School was

p reparing to send report cards home for the first nine weeks.

Mr. Palaio offered to help Respondent in this regard if she

encountered any difficulty.

30 . On October 28, 2009, Mr. Palaio offered to help

Respondent with entering grades in Gradequick beca use she was

late in doing so. Mr. Palaio advised Respondent that he had

corrected some of her inconsistencies, but that he was more

concerned with her failure to enter all required grades for her

students. Specifically, Mr. Palaio noted that Respondent h ad

not entered grades for some children for over two weeks.

31 . George Clayton was the p rincipal of Perry Primary

School for the 2009 - 2010 school year. Around the end of October

or the beginning of November 2009, Mr. Clayton sent Respondent a

reminder that she was two weeks behind in posting her grades to

Edline and entering grades to Gradequick. Mr. Clayton told

Respondent to "take care of this matter."

32 . Anne Sesock, as the Response to Invention (RTI)

Specialist for the 2009 - 2010 school term, wa s resp onsible for

monitoring teachersÓ data for FAIR and Aimsweb testing at Perry

Primary School. Over time, Ms. Sesock became aware that

Respondent was behind on her FAIR and Aimsweb testing and/or

data entry.

33 . On October 29, 2009, Ms. Sesock remi nded all teachers

that Thursday was the day they should monitor progress of their

students in math using Aimsweb. Ms. Sesock h ad already entered

the studentsÓ names into the computer. Ms. Sesock then gave a

brief description of how to perform the task.

34 . On October 30, 2009, Ms. Sesock reminded certain

teachers, including Respondent, that they needed to enter their

reading/literacy scores into Aimsweb. This was necessary for

the school to prepare for a data meeting.

35 . On October 30, 2009, Mr. Palaio reminded Respondent

that she needed to see about her Tienet progress reports that

had to go home with student report cards.

36 . Mr. Palaio sent Respon dent another message on

October 30, 2009. In that message, Mr. Palaio stated that one

of Resp ondent Ó s students still needed early literacy scores

entered in Aimsweb.

37 . On November 2, 2009, Perry Primary School sent report

cards home. Ms. Padgett asked Respondent to a meeting regarding

RespondentÓ s failure to send Tienet parent reports out w ith

report cards.

38 . On November 2009, Mr. Palaio responded to RespondentÓ s

request fo r help in checking her studentsÓ grades and parent

reports. Mr. Palaio advised Respondent that he had corrected

the grades in Gradequick so that she would now be en tering

grades for the second nine weeks. He stated that she had some

grades missing and needed to be consistent in entering the

grades. He also reminded Respondent that she needed to make

corrections in the Tienet parent reports relating to student

objec tives, which should have been sent home with the last

report cards.

39 . On November 17, 2009, Ms. Sesock directed Respondent

to bring certain Aimsweb reading benchmark assessment sheets to

a training session that afternoon. Ms. Sesock offered to enter

them in the computer.

40 . In November 2009, Mr. Clayton became concerned with

the lack of structure and student behavior problems in

RespondentÓ s classroom. He subsequently initiated a plan to

provide Respondent with help in this regard.

41 . On N ovember 23, 2009, Ms. Padgett advised Respondent

that a substitute would be available the next day so that

Respondent could meet with school staff and the BMC consultant.

The purpose of meeting was to develop a schedul e and activities

for RespondentÓ s cla ss.

42 . On or about November 24, 2009, Respondent, the BMC

consultant, and other school staff members met to develop a

Tuesday/T hursday schedule for RespondentÓ s class. After the

meeting, Respondent was supposed to develop a similar schedule

for Monda y, Wednesday, and Friday. There is no per suasive

evidence that Respondent ever completed this task.

43 . The Tuesday/Thursday schedule provides for whole group

time beginning at 8:00 a.m. As the day progresses, the personal

assistants were assigned to work one - on - one with a student, in

small groups, or large groups, while Respondent worked one - on -

one or two - on - one with specific students.

44 . To supplement the Tuesday/Thursday schedule,

Respondent and the BMC consultant developed a Tuesday/Thursday

Lesson Plan of 1:1 or 2:1 Instructions. The lesson plan names

specific students and the skills/materials to be used with that

student.

45 . On December 1, 200 9, BMC staff visited RespondentÓ s

classroom to observe implementation of the new schedule. Th ey

advised Ms. Padgett that Respondent stayed on the schedule for

part of the day, but failed to follow it for the rest of the

day.

46 . On December 1, 2009, Ms. Padgett provided Respondent

with a copy of a walk - through monitoring form to be used when

s he and other administrative staff visited Respondent's class.

Ms. Padgett reminded Respondent to post her class schedule for

all support staff during the times that Respondent and the

personal assistants were working one - on - one with students and in

group time.

47 . On December 2, 2009, Ms. Padgett shared BMC Ó s concerns

with Mr. Clayton.

48 . On December 3, 2009, Ms. Padgett visited RespondentÓ s

classroom to observe a reading lesson under the new

Tuesday/Thursday schedule. Ms. Padgett noted that Resp ondent

was behind schedule but appeared to be implementing the new

plan. Ms. Padgett subsequently provided Respondent with written

observations, setting forth strengths, missed opportunities, and

something to work on.

49 . In December 2009, Ms. Padgett became aware that

Respondent had not done the required mid - year FAIR testing or

had done the testing but failed to enter the data in the

computer. On December 3, 2009, Mr. Palaio advised Ms. Padgett

that Respondent had not started a single FAIR test. Th e next

day, Ms. Padgett di rected Respondent to begin FAIR - testing her

students and to get help from Mr. Palaio and/or Ms. Sesock , if

needed.

50 . On December 4, 2009, Mr. Palaio advised Respondent and

another teacher that they needed to complete the

reg ress/recoupment forms for their students before Christmas

break. The forms are used three times a year to record test

da ta on the same specific skill. The data is used to determine

whether a student requires an extended school year (summer

school) as an accommodation.

51 . On December 7, 200 9, Mr. Clayton responded to

Ms. Padgett that he was disappointed in Respondent Ó s failure to

adhere to the new schedule. Mr. Clayton stated that he would be

visiting RespondentÓ s class that day.

52 . From Decembe r 8, 2009, through December 11, 2009,

Respondent was absent from school because she had pneumonia.

During that week, Respondent came to school one ti me for a

meeting at Mr. ClaytonÓ s request. The meeting related to a

student that would soon be entering R esponde ntÓ s class.

53. There is no record of Respondent receiving emails from

school while she was home sick. Accordingly, the following

emails dated December 8 through 11 may not have been read by

Respondent until she returned to school on December 1 4, 2009.

54 . On December 8, 2009, Mr. Palaio sent Respondent an

email. He advised her that certain students were missing a

spelling score in the FAIR testing.

55 . On December 9, 2009, Ms. Thompson reminded Respondent

that an IEP meeting was schedule d on December 11, 2009, for "O."

Ms. Thompson had started the IEP but reminded Respondent to add

the goals. The December 11, 2009, IEP meeting obviously had to

be cancelled because Respondent was home sick and had not

completed drafting the IEP.

56 . On December 10, 2009, Mr. Palaio sent Respondent an

email. Once again, he reminded her that she needed to enter

FAIR scores for spelling.

57 . On December 11, 2009, Mr. Palaio sent Respondent an

email. Once again, he reminded Respondent to complete th e

regress/recoup form with all students that week.

58 . On December 16, 2009, Mr. Palaio advised Respondent

that the initial regress/recoup testing had been done by another

staff member the week before and that he had entered the scores.

Mr. Palaio provi ded Respondent with a spreadsheet showing the

results of the first probe that needed to be repeated the first

day after Christmas break and then again two weeks later.

59 . On December 17, 2009, Mr. Palaio reviewed the policy

at Perry Primary School reg arding the need to check email three

or four times a day. Teachers were supposed to read email

before school, after reading, during lunch, and after school.

Respondent was advised that teachers are held responsible for

knowing the information contained i n school emails, including

requests for specific data.

60 . On December 17, 2009, Ms. Sesock reminded all teachers

to complete their Aimsweb math and reading probes. Ms. Sesock

wanted all teachers to enter the data that day or the next day

so that the data would be available in January for intervention

assistance team meetings.

61 . In an email dated January 3, 2010, Ms. Sesock wanted

to know abo ut missing scores in RespondentÓ s Aimsweb progress

monitoring. Ms. Sesock could not run charts on the stu dents

until all scores were entered in the computer.

62 . January 4, 2010, was a teacher - planning day. During

the day, Mr. Palaio sent Ms. Sesock a list of teachers,

including Respondent, who had missing Aimsweb data as of

December 18, 2009. Ms. Sesoc k responded with an email inquiring

whether they could give Respondent an explicit instruction

booklet on how to input scores so Respondent would learn to do

it herself and quit bothering them.

63 . On January 4, 2010, Mr. Palaio reminded Respondent and

other teachers that they needed to complete the second set of

regress/recoup progress monitoring. He advised them to use the

spreadsheet started before Christmas and to repeat the process

on January 19, 2010.

64 . On January 5, 2010, Mr. Palaio reques ted that

Respondent see him about Aimsweb and Brigance. He wanted to

assist her with the Brigance books and Aimsweb probes.

65. On January 5, 2010, Respondent injured her shoulder

and knee when she fell after tripping over a student at school.

She was prescribed pain medication (Vicodin and Celebrex) and

required to wear a leg brace. Respondent claims that the

medications made her sleepy and made it difficult for her to

focus. However, she did not complain to anyone at Perry Primary

School that the me dications were interfering with her

performance.

66 . On January 8, 2010, Ms. Thompson advised Respondent

and other teachers about completing IEPs. Specifically, she

reminded them that they needed to enter the accommodations for

each child on an indivi dual basis.

67 . On January 11, 2010, Mr. Palaio requested that

Respondent see him that day. Mr. Pala io wanted to discuss

RespondentÓ s scores for Brigance, Aimsweb, and Tienet.

68 . By January 2010, Mr. Clayton was aware that Respondent

and the three pe rsonal assistants in her classroom were not

working as a team. The personal assistants resented having to

work with small or large groups of students while Respondent

worked with students on a one - on - one or two - on - one basis.

69 . Mr. Clayton had a meet ing with Respondent and her

personal assistants on January 13, 2010. He gave the personal

assistants a copy of their job descriptions. He reminded them

that Respondent was the class leader and that they were her

support staff.

70 . On January 13, 2010 , Mr. Clayton told the personal

assistants that they had to stay with their assigned students

when BMC staff came to model implementation or observe

implementation of a behavior plan. He did not want the

assistants to think they could take a break every t ime BMC staff

visited the classroom.

71 . During the January 13, 2010, meeting, Mr. Clayton

discussed the Tuesday/Thursday schedule developed by BMC staff.

He requested that Respondent develop a Monday/Wednesday/Friday

schedule, using the same format, and give i t to him.

Mr. Clayton was concerned that there was not a consist ent daily

routine in RespondentÓ s classroom.

72 . Mr. Cl ayton also discussed RespondentÓ s lesson plans

during the January 13, 2010, meeting. Mr. Clayton wanted

Respondent to giv e him a copy of her lesson plans for the

upcoming week every Friday before she left school. The first

Friday that Respondent should have given Mr. Clayton her lesson

plans was on Friday, January 15, 2010.

7 3 . As a general rule, teachers kept their lesso n plans,

two weeks in advance, in spiral notebooks provided by the school

at the beginning of the school year. Teachers were supposed to

keep the lesson plan books on their desks at all times.

Mr. Clayton reviewed the lesson plans on a regular basis.

74 . Mr. Clayton made the special request on Jan uary 13,

2010, about RespondentÓ s lesson plans because he never saw her

plan book on her desk. When he asked about the plan book,

Respondent always said it was in her car or at home.

75 . During the Janua ry 13, 2010, meeting, Mr. Clayton

instructed Respondent to provide each personal assistant with a

copy of the IEPs and behavior plans for each student in the

class. Mr. Clayton wanted the personal assistants to be

familiar with all of the students Ó IEPs a nd behavior plans so

that they would know what to do in the absence of Respondent or

a colleague. The greater weight of the evidence indicates that

Respondent never complied with Mr. ClaytonÓ s directive in this

regard.

7 6 . Finally, Mr. Clayton told Re spondent on January 13,

2010, that her class would be moved that weekend from a portable

classroom to a classroom in the main building. The purpose of

the move was to place the class closer to the school clinic to

accommodate a student with medical issues .

77 . Mr. Clayton created written minutes of the January 13,

2010, meeting to share with Respondent and the personal

assistants. Following the meeting on January 13, 2010, the

assistants became more cooperative.

7 8 . On January 13, 2010, Ms. Sesock told Respondent how

important it was for her to have up - to - date progress monitoring

data for Aimsweb reading and math. At that time, Respondent had

not entered the required weekly progress monitoring data, seven

scores in math and five scores in reading.

79 . The second benchmark assessment for Aimsweb was due to

be entered between January 11, 2 010, and January 15, 2010.

Ms. Sesock wanted to make sure that Respondent had all the

materials she needed to perform the assessment.

80 . On January 13, 20 10, Ms. Thompson reminded Respondent

that "O's" IEP meeting was scheduled for Friday, January 15,

2010. Ms. Thompson requested that Respondent update his

academic and behavior goals before the meeting. The next day,

Ms. Thompson directed Respondent to up date "O's" curriculum and

behavior goals.

81 . On January 15, 2010, the IEP meeting had to be

rescheduled bec ause Respondent did not have ÐOÓsÑ IEP properly

drafted. Ms. Thompson sent an email to Respondent, stating that

Respondent needed to separate g oals and objectives on the IEP by

subject area. For example, Respondent needed one goal and two

objectives for reading, math, and behavior.

82. After r eceiving a copy of Ms. ThompsonÓ s January 15,

2010, email to Respondent, Mr. Clayton directed Respon dent to

com plete ÐOÓ s Ñ IEP goals by January 19, 2010. Mr. Clayton told

Respondent to put the IEP in his mailbox before she left school

on the 19th.

83 . On January 15, 2010, Respondent did not provide

Mr. Clayton with the lesson plans for the upcoming week.

Instead, she left school early for a doctorÓ s appointment and

took the rest of the day off.

84 . On January 19, 2010, Mr. Clayton advised Respondent

that he had reviewed her Aimsweb data and that it was not

updated. He told her to update the rea ding and math data before

she left school on January 21, 2010.

85 . During the 2009 - 2010 school year, Respondent had

completed two IEPs before attempting the IEP for ÐO.Ñ However,

Respondent failed to complet e ÐOÓsÑ IEP and place it in

Mr. Clayton's ma il box on January 19, 2010, as requested.

86 . On January 19, 2010, Mr. Palaio sent Respondent an

internet link for Tienet. Apparently, Respondent had lost the

website address.

87 . On January 21, 2010, Mr. Clayton issued Respondent a

letter of reprima nd for Ðinsubordin ationÑ for failing to

complete ÐOÓsÑ IEP on time. Respondent received the January 21,

2010, letter of reprimand, concerning the IEP, in her mailbox at

school.

88 . RespondentÓs failure to timely complete the IEP was

gross insubordinat ion. Respondent had been given more than

enough time and assistance to properly draft the IEP. There is

no pers uasive evidence that RespondentÓ s pain medication was

responsible for her inability to complete the IEP.

89 . On January 21, 2010, Ms. Thomp son advised Respondent

that corrections still needed to be made to ÐOÓsÑ IEP.

Respondent was told that each a rea of the IEP needed a present -

level statement followed by at least one goal and two

objectives. Later that day, Mr. Palaio gave Respondent

add i tional suggestions to make the IEP meet PetitionerÓ s ESE

standards.

9 0 . On January 21, 2010, Mr. Palaio sent Respondent an

email. The message reminded Respondent that most of her Aimsweb

scores had not been entered.

91 . On the morning of January 2 2, 2010, Mr. Clayton shared

some of his concerns with Respondent in an email. First, he

discussed RespondentÓ s need to conduct Aimsweb progress

monitoring probes in reading and math. Second, Mr. Clayt on was

worried about RespondentÓ s failure to enter gra des in

Gradequick, advising her to see Mr. Palaio by the end of the day

to resolve this matter. Third, Mr. Clayton reminded Respondent

that she needed to be using the school - wide behavior

modification program. Fourth, Mr. Clayton noted some errors in

ÐOÓ sÑ IEP. Fifth, Mr. Clayton told Respondent not to forget to

do the ESE regress/recoup form. Finally, Mr. Clayton reminded

Respondent that she was supposed to provide him with a copy of

her lesson plans before leaving school that afternoon.

92 . Mr. Cl ayton wanted to make sure that Respondent

received his January 22, 2010, email. He asked his assistant to

call Respondent that afternoon. Realizing that Respondent was

not in her classroom, Mr. Clayton requested the assistant to

call Respondent Ó s cell ph one a nd her husbandÓ s cell phone.

Because Mr. Clayton could not reach Respondent, he sent her

another email at 3:55 p.m., telling her to contact Mr. Palaio if

she and he were still on campus.

93 . Respondent left school on Friday, January 22, 2010,

wi thout giving Mr. Clayton her lesson plans.

94 . At 5:51 p.m. on January 22, 2010, Mr. Palaio sent

Respondent an email. He reminded her to do her quarterly Tienet

progress reports that were due to go home with report cards on

January 27, 2010.

95 . O n Monday morning, January 25, 2010, Mr. Clayton sent

Respondent an email. The message stated that administration

wanted to meet with her at 2:30 in Mr. ClaytonÓ s office.

Respondent was advised that she could bring union representation

to the meeting.

96 . During the meeting on January 25, 2010, M r. Clayton

discussed RespondentÓ s failure to provide him with her lesson

plans as directed. Mr. Clayton also told Respondent that her

failure to complete a task by a given date constituted

insubordination and served as grounds for termination.

97 . During the January 25, 2 010, meeting, Mr. Clayton told

R espondent that she had a chance to resign. Mr. Clayton stated

that if she did not resign, he would contact the Superintendant

and recommend her termination.

98 . Respondent could not make a decision to resign without

talking to someone. Mr. Clayton told Respondent to let him know

her decision by Wednesday, January 27, 2010. Respondent did not

do so.

99 . At some point in time, Mr. Clayton placed a lette r of

reprimand, dated January 25, 2010, in Respondent's mailbox for

failing to provide him a copy of her lesson plans on January 15,

2010, and on January 22, 2010. Mr. Clayton noted in the letter

that he still had not received Respondent's lesson plans.

100 . Following the meeting, on January 25, 2010,

Respondent got materials ready for her students for the

remainder of the week. Respondent did not return to work until

Monday, February 1, 2010.

101 . On January 26, 2010, Ms. Thompson advised Respond ent

by email that Ð O ÓsÑ goals and objectives were looking better.

However, Ms. Thompson noted certain corrections needed to be

made. Ms. Thompson placed a draft copy of the IEP , with

notations, in RespondentÓ s mailbox.

102 . When Respondent returned t o school on February 1,

2010, she gave Mr. Clayton a very detailed copy of her lesson

plans for February 1, 2010, through February 12, 2010. The

lesson plans were in a narrative form and not in a lesson plan

book form that contains plans for a week at a g lance. Even

though the plans were not drafted according to Perry Primary

School policy and were not the plans expected, Mr. Clayton

provided Respondent with a lengthy critique of the lesson plans.

103 . On February 1, 2010, Mr. Clayton advised Responde nt

that she needed to complete the regress/recoup spreadsheet. He

also told her that she still need ed to fix Ð O ÓsÑ IEP by

February 3, 2010, and bef ore the IEP meeting on February 10,

2010. Mr. Clayton directed Respondent to complete the January

Brigance testing before she left work on February 5, 2010.

104 . On February 1, 2010, Ms. Padgett sent Respondent an

email regarding the reading programs in RespondentÓ s classroom.

Ms. Padgett told Respondent that Ms. Padgett and the BMC staff

had made certain decisions about the reading program while

Respondent was absent from school.

105 . On February 2, 2010, Ms. Thompson advised Respondent

that "O's" IEP was better. However, Ms. Thompson noted that

Respondent needed to work on the reading goal and two

ob jectives.

106 . On February 3, 2010, Ms. Thompson stated that she had

met with Mr. Palaio and that he ha d offered some suggestions for

Ð O Ó s Ñ IEP. Ms. Thompson's message included a copy of a draft

IEP prepared by Mr. Palaio.

10 7 . In a letter dated F ebruary 3, 2010, Mr. Clayton

recommended that the Supe rintendant terminate RespondentÓ s

employment. T he letter references RespondentÓ s failure to

provide him with lesson plans and the associated reprimand. The

lett er does not refer to RespondentÓ s reprim and for not

completing the IEP goals.

108. Mr. ClaytonÓ s February 3, 2010, letter also included

the following deficiencies: (a) Respondent never provided the

personal assistants with the student behavior plans as

instructed on January 13, 2010; (b) R espondent did not have her

Brigance testing up to date; and (c) RespondentÓ s Aimsweb data

was not up to date.

109 . In a letter dated February 5, 2010, Paul Dyal,

Superintendant of Taylor County School District, advised

Respondent that her employment wa s suspended with pay as of

February 8, 2010. Mr. Dyal stated that the action was based on

RespondentÓ s insubordina tion as outlined in Mr. ClaytonÓ s

Febr uary 3, 2010, letter. Mr. DyalÓ s letter was hand - delivered

to Respondent on February 5, 2010.

CONCLUSI ONS OF LAW

110 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to section s 120.569 and 120.57(1), Florida

Statutes (2010).

111 . Petitioner has the burden of proving, by a

p reponderance of the evidence that RespondentÓ s employment

should be terminated. See McNeill v. Pinellas C nty . Sch. Bd. ,

678 So. 2d 476, 477 (Fla. 2nd DCA 1996 ) ; Ferris v. Austin , 487

So. 2d 1163 (Fla. 5th DCA 1986 ) .

112 . District school boards have the authority to

"operate, control, and supervise all free public schools in

their respective districts . . . except as expressly prohibited

by the State Constitution or general law." See § 1001.32(2),

Fla. Stat. Such authority extends to personnel matters and

includes the power to suspend or dismiss employees. See

§§ 1001.42(5), 1012.22(1)(f), and 1010.23(1), Fla. Stat.

113 . Section 1012.33, Florida Statutes, states as follows

in relevant part:

1012.33 Contracts with instructional

staff, superv isors, and school principals. --

(1)(a) Each person employed as a

member of the instructional staff in any

district school system . . . shall be

entitled to and shall receive a written

contracts as specified in this section.

All such contracts, exce pt continuing

contracts as specified in subsection (4),

shall contain provision for dismissal during

the term of the contract only for just

cause. Just cause includes, but is not

limited to, the following instances, as

defined by the rule of the State Boa rd of

Education: immorality, misconduct in

office, incompetency, gross insubordination,

willful neglect of duty, or being convicted

or found guilty of, or entering a plea of

guilty to, regardless of adjudication of

guilt, any crime involving moral turpitu de.

114 . The Master Teacher Contract provides at Article III,

Association and Em ployee Rights, Section S, that Ð [a] teacher .

. . may be suspended or dismissed during the term of the

contract for just cause.Ñ The contract does not define Ðjust

cause. Ñ

115 . Article XI, General Employment Practices, Section M,

of the Master Teacher Contract provides a list of possible

disciplinary actions. These actions include: written warning,

written reprimand, suspension, non - renewal, dismissal, or return

to p robationary status contract.

116 . Florida Administrative Code Rule 6B - 4.009(4) defines

gross insubordination Ð as a constant or continuing intentional

refusal to obey a direct order, reasonable in nature, and give n

by and with proper authority.Ñ

117 . In this case, Petitioner has shown jus t cause to

terminate RespondentÓ s employment in sever al respects. First,

RespondentÓ s failure to provide lesson plans as directed on

January 15, 2010, and January 22, 2010, was gross

insubordination. A teacher, such as Respondent, with over 35

years of teaching experience, should not have ha d any doubt

about her principalÓ s expectation in this regard.

118 . Second, it was gross insubordination for Respondent

not to provide her personal assista nts with copies of the

studentsÓ IEPs and behavior plans. It was a reasonable and

necessary requirement for all adults in the classroom to be

familiar with the IEPs and behavior plans of all students.

119 . Third, Respondent demonstrated gross insubordination

because she co ntinually fail ed to keep up with the studentsÓ

Brigance testing as instructed. Respondent Ó s refusal to do the

Brigance testing in a timely manner is especially hard to

understand because it is an old - style paper and pencil test.

120 . Finally, Responde nt was grossly insubordinate because

she refused to learn to use Aimsweb to perform tests and record

data. Despite all the help she received, Respondent still did

not have her Aimsweb math scores updated in February 2010.

Absent being grossly incompetent , there is n o excuse for

RespondentÓ s failure in this regard.

121 . Petitioner has met its burden in this case.

Petitioner has jus t cause to terminate RespondentÓ s employment

based on gross insubordination.

RECOMMENDATION

Based on the foregoing Find ings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That The Taylor County School Board enter a final order

terminating Respondent Ó s employment.

DONE AND ENT ERED this 22nd day of February , 2011 , 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

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of February , 2011 .

COPIES FURNISHED :

Angela M. Ball, Esquire

Post Office Box 734

Perry, Florida 32348

Ronald G. Stowers, Esquire

Levine & Stivers, LLC

245 East Virginia Street

Tallahassee, Florida 32301

Paul Dyal, Superintendent

Taylor County School District

Alton J. Wentworth Administrative Office Complex

3 18 North Clark Street

Perry, Florida 32347

Dr. Eric J. Smith, Commissioner

Department of Education

Turlington Building , Suite 15 1 4

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper, Acting General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All p arties 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.