11-000238TTS Lake County School Board vs. Deborah Harkleroad Status: Closed Recommended Order on Friday, June 24, 2011.

Summary: The School Board demonstrated by a preponderance of the evidence that it followed all proper assessment procedures and that Respondent's employment should be terminated due to incompetency.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 11 - 0238

)

DEBORAH HARKLEROAD , )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notic e, a formal hearing was held in this case

on March 7, 2011 , in Leesburg , Florida, before Lawrence P.

Stevenson, the designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven W. Johnson , Esquire

McLin & Burnsed

Post Office Box 491357

Leesburg , Florida 34749 - 1357

For Respondent: Joseph C. Shoemaker , Esquire

Bogin, Munns & Munns

628 South 14th Street

Leesburg , Florida 3 4748

STATEMENT OF THE ISSUE

The issue is whether Petitioner, the Lake County School

Board, has just cause to terminate the employment of Respondent,

teacher Deborah Harkleroad .

PRELIMINA RY STATEMENT

On December 13, 2010, Susan Moxley , Superintendent of

Schools for the Lake County School Board (the "School Board")

wrote a letter to Respondent De borah Harkleroad . Th e letter

informed Ms. Harkleroad that , pursuant to s ection 1012.34,

Florida Statutes, she had failed to correct performance

deficiencies identified by her principal . Dr. Moxley therefore

intended to recommend to the School Board that Ms. Harkleroad's

employment be terminated as of January 10, 2011.

On January 7, 20 11, Ms. Harkle road filed with the School

Board a letter requesting a due process hearing. On January 13,

2011 , the School Board referred the matter to the Division of

Administrative Hearings ("DOAH") for the assignment of an

Administrative Law Judge and t he conduct of a formal hearing.

Th e matter was scheduled for final hearing on March 7,

20 11 . At the hearing, the School Board presented the testimony

of Rebecca Nelson, supervisor of compensation and employee

relations for the School Board; Patricia Nave, an assistant

principal at Fruitland Park Elementary School (" Fruitland Park ")

in Fruitland Park; Melissa DeJarlais, the principal of Fruitland

Park; Tanya Rogers, an assistant principal at Beverly Shores

Elem entary School in Leesburg ; and Jeffrey Williams, the

princip al of Beverly Shores Elementary School . The School

Board's Exhibits 1 through 1 7 and 23 through 25 were admitted

into evidence. Respondent testified on her own behalf and

presented the testimony of Norma Jean Miller, her former

colleague as a literacy co ach at Fruitland Park and currently a

curriculum resource teacher at Rimes Elementary School.

Respondent's Exhibits 18 through 22 were admitted into evidence .

The two - volume Transcript of the hearing was filed at DOAH

on March 22, 2011 . On March 29, 20 11, the parties filed a

stipulated motion for a 10 - day extension in the time for filing

proposed recommended orders. The motion was granted by order

dated March 31, 2011. In accord with the o rder granting

extension, both parties filed their Proposed Reco mmended Orders

on April 11, 2011.

FINDINGS OF FACT

1. Respondent De borah Harkleroad has been employed by the

School Board as a teacher for ten years. She is a member of the

Lake County Education Association , the collective bargaining

unit for teaching pe rsonnel . She is covered by the collective

bargaining agreement between the School Board and the Lake

County Education Associa tion (the "CBA") , and holds a

professional service contract with the School Board pursuant to

Section 1012.33, Florida Statutes. 1 /

2. During the first two years of her employment, the 2001 -

2002 and 2002 - 2003 school years, Ms. Harkleroad was assigned to

Tavares Middle School. At the start of her third year in the

fall of 2003, she transferred to Fruitland Park as that school's

first elementary literacy coach.

3. During the 2007 - 2008 school year, Ms. Harkleroad

transitioned into teaching a regular third - grade class at

Fruitland Park. She remained in that position during the 2009 -

2010 school year.

4 . The School Board employs a pe rformance evaluation

methodology called "Instructional Personnel Performance

Appraisal System" or "IPPAS." The standards for evaluation, the

methodology to be used by evaluators, and the documents used in

the evaluation of instructional personnel are set forth in the

IPPAS Handbook. Article XI of the CBA acknowledges that the

IPPAS is the vehicle for the evaluation and assessment of

teachers employed by the School Board.

5. Section 7 of Article XI of the CBA provides that an

IPPAS Joint Committee compose d of an equal number of

representatives of the School Board and the Lake County

Education Association will coordinate and monitor the

development and implementation of the assessment process.

6. Section 12 of Article XI of the CBA states that any

teacher in danger of dismissal because of poor performance will

be afforded the procedure set forth in s ection 1012.34, Florida

Statutes . This procedure is given the colloquial acronym

"NEAT," which stands for: N -- Notice of alleged deficiencies

which, if not cor rected, would lead to dismissal; E --

Explanation to the teacher of alleged deficiencies and

suggestions for correction; A -- Assistance rendered by the

administration to correct alleged deficiencies; and T -- Time for

alleged deficiencies to be corrected.

7. In accordance with the CBA and the IPPAS Handbook, the

School Board evaluates teacher performance using an

"Observation/Assessment of Professional Performance Standards"

form in a procedure called an "Appraisal I." The Appraisal I is

the standard evalua tion for teachers employed by the School

Board.

8. The Observation/Assessment form contains 6 sections and

12 subsections . T he subsections are further divided into sub -

subsections. The evaluator gives the teacher a score of

"acceptable" or "unacceptable " in each sub - subsection . The

overall evaluation is graded on a 12 - point scale , one point for

each of the 12 subsections. If the teacher's performance is

graded unacceptable in even one sub - subsection, then the teacher

receive s an unacceptable score for the overall subsection.

9. The only acceptable overall score on the

Observation/Assessment form is a perfect 12. If a teacher does

not receive an acceptable score in each of the 12 subsections,

then the teacher's overall performance is deemed deficient .

A deficient Appraisal I triggers the NEAT pr ocedure and further

evaluations.

10. The IPPAS provides a voluntary alternative evaluation

for experienced teachers who have received scores of 12 on the

Appraisal I for the two immediately preceding years a nd have a

professional service contract with the School Board. This

alternative is called "PG - 13," and allows the teacher to select

a Ð professional growth Ñ objective for the school year, work with

an administrator in devising a strategy for attaining the

objective , and demonstrate the attainment of the objective.

11. Finally, the IPPAS contains an evaluation instrument

called a "Professional/Personal Action Report Relating to Work

Experience," or "Appraisal II." The Appraisal II is used to

document indiv idual instances of deficiency in a teacher's work

performance that have been identified outside of the formal

evaluation process.

12. In order to become eligible for the voluntary PG - 13, a

teacher must have received no Appraisal II reports during the

tw o years immediately preceding entry into PG - 13. In order to

remain eligible for the PG - 13, a participating teacher must

continue to meet the standard competency level for teaching

performance, which includes receiving no Appraisal II reports.

13. Since t he 2004 - 2005 school year, Ms. Harkleroad had

participated in the PG - 13 evaluation process every year except

2007 - 2008, when she had back surgery and was unable to complete

her PG - 13 project. For the 2007 - 2008 school year,

Ms. Harkleroad received an Apprai sal I score of 12.

14. On March 19, 2009, Ms. Harkleroad received an

Appraisal II report from the principal of Fruitland Park,

Melissa DeJarlais. The "Area of Concern" listed on the

Appraisal II form was "Personal Characteristics and Professional

Respo nsibilities." Dr. DeJarlais wrote the following

explanation of Ms. Harkleroad's deficient performance:

On 3 - 5 - 09, teachers required to administer

the FCAT assessment were mandated to attend

the annual FCAT administration training.

Mrs. Harkleroad was obs erved nodding off

and/or sleeping during this training. She

later explained that she did not feel well

and it was possible that her prescribed

medication was causing her to be overly

sedated. As a precautionary measure,

Mrs. Harkleroad's testing responsi bilities

were changed to that of a proctor thus

requiring us to assign another instructional

person to her classroom for the express

intention of administering the FCAT.

Mrs. Harkleroad did not perform her

proctoring duties and instead spent time

working on school related activities not

germane to FCAT testing. These activities

included printing her substitute or lesson

plans while students were actively taking

the FCAT assessment thus compromising the

testing environment.

15. At the t ime she received the Appraisal II,

Ms. Harkleroad wrote the following response:

In response to the Professional/Personal

Action Report dated 3 - 19 - 09, I was running a

temperature of 102.6 and my blood pressure

was dipping dangerously low due to being

sick o n 3 - 5 - 09. I should have taken a sick

day on this date, but I didn't due to the

diminishing amount of teaching time left

before the FCAT.

I did fully perform my duties as a proctor

for the math FCAT testing, and I did not at

any time perform the activitie s alleged.

During the time when I was printing my

students' cloze practice reading

assignments, no students were actively

taking the test.

16. At the hearing, Dr. DeJarlais offered no first hand

testimony regarding the allegation that Ms. Harkleroad did not

perform her proctoring duties and printed documents in the

classroom while the FCAT was being administered. She testified

that she relied on the report s of the test administrator and the

testing coordinator in issuing the Appraisal II to

Ms. Harklero ad.

17. Ms. Harkleroad testified that, unlike the previous

principals she had worked for at Fruitland Park, Dr. DeJarlais

had never liked her or appreciated the extra work she did in

compiling data that tracked student performance on the FCAT and

other st andardized tests. Ms. Harkleroad testified that she had

always received "rave reviews" for the extra work she did in

creating and maintaining the school wide data bank for tracking

standardized test scores. She resented the fact that

Dr. DeJarlais neglec ted to rave over the data notebooks when

Ms. Harkleroad presented them to her. Ms. Harkleroad felt

personally snubbed and concluded that Dr. DeJarlais did not like

her.

18. As to the events of March 5, 2009, Ms. Harkleroad

surmised that the test ad ministrator was trying to make "brownie

points" with Dr. DeJarlais by maliciously reporting falsehoods

about Ms. Harkleroad's actions in the classroom. Ms. Harkleroad

asserted that the administrator was a friend of Dr. DeJarlais ,

and that the principal si mply took the administrator's word for

what happened without conducting any further investigation.

19 . Ms. Harkleroad disputed the incident to Dr. DeJarlais

to the point of crying, and she was so upset she had to leave

school early that day. She testifie d that at the time she was

unaware that the CBA allowed her to file a union grievance over

the Appraisal II.

20. Neither party called the test administrator, Kimberly

Belcher, to testify .

21. Based on the testimony, the undersigned is not

inclined to sec ond - guess Dr. DeJarlais' decision to take the

word of Ms. Belcher as to what occurred in the classroom on

March 5, 2009. Ms. Harkleroad offered only s peculation as to

any motive Ms. Belcher had to concoct a story about

Ms. Harkleroad's actions during the FCAT. To accept

Ms. Harkleroad's version of events, it is necessary to believe

not only that Dr. DeJarlais was out to get Ms. Harkleroad, but

that Dr. DeJarlais ' vendetta against Ms. Harkleroad was such

common knowledge that Ms. Belcher knew she could win "brownie

points" by lying about the teacher to the principal. The

evidence does not support such a chain of inferences.

22 . Ms. Harkleroad testified that during the meeting about

the Appraisal II, Dr. DeJarlais emphasized that she would no

longer be eli gible for the PG - 13 evaluations and would have to

revert to the Appraisal I evaluation. Ms. Harkleroad stated, "I

knew then, when she told me that, that she was out to destroy my

career."

23 . This extraordinary statement was premised on

Ms. Harkleroad's assertion that she has a severe panic disorder

that renders her unable to withstand the situation presented by

an Appraisal I, in which she must teach while an evaluator sits

in the room and judges her performance. Ms. Harkleroad asserted

that Dr. DeJarla is was aware of this condition, and purposely

contrived to force Ms. Harkleroad back into the Appraisal I

process in order to get rid of her.

24 . At this point, it is useful to digress from the main

narrative to provide a brief history of Ms. Harkleroad 's medical

travails. She testified that she has a severe form of stress or

panic disorder that makes her paranoid and unable to function in

situations in which she thinks people are judging her. Earlier

in her career, she was able to control the panic at tacks with a

prescribed medication , Xanax (alprazolam) , and was able to

perform well in Appraisal I situations.

25 . At some unspecified time prior to the 2005 - 2006 school

year, Ms. Harkleroad underwent spinal fusion surgery . During

the 2005 - 2006 school y ear, Ms. Harkleroad was involved in an

incident requiring her to restrain a kindergarten student who

was throwing wooden chairs in the library. Ms. Harkleroad's

back was injured. Ms. Harkleroad alleged that the School

Board's contract workers' compensati on physician misdiagnosed

the injury and sent her back to work. T wo years later , another

physician examine d Ms. Harkleroad's MRI from the incident and

determine d that her fusion had been shattered.

26 . During the 2007 - 2008 school year, Ms. Harkleroad had

major back surgery that kept her away from school for 12 weeks.

When she returned to work during the spring semester of 2008,

she was in a body cast, followed by approximately five months in

a brace.

27 . Ms. Harkleroad testified that the damage to her b ack

was so severe that it could not be completely repaired. She was

subject to muscle spasms due to pressure on her sciatic nerve.

The pain became so severe that in February 2009 she began seeing

a physician for pain management. The physician prescribed what

Ms. Harkleroad called "pretty heavy duty" medications such as

Oxycontin (oxycodone).

28 . Ms. Harkleroad's physicians advised her that Xanax

cannot be taken with Oxycontin. Therefore, she was forced to

forego her panic disorder medication after Febr uary 2009.

29 . Dr . DeJarlais came to Fruitland Park at the start of

the 2008 - 2009 school year. Ms. Harkleroad was unsure how much

Dr. DeJarlais knew about her medical history, though she

specifically recalled telling Dr. DeJarlais that she was the

teache r who had back surgery and came back in a body cast.

Ms. Harkleroad also recalled that, in her first conversation

with the new principal, she told Dr. DeJarlais about her panic

disorder.

30 . Dr. DeJarlais testified that she was unaware that

Ms. Harkleroa d claimed any disabilities. She knew that

Ms. Harkleroad took pain medications for her back , but knew no

specifics about them.

31 . Ms. Harkleroad testified that at the time of the FCAT

administration meeting on March 5, 2009, she was sick and had

just st arted on the pain management medications. She had taken

Nyquil for a cold on top of the Oxycontin, and the combination

caused her to fall asleep at the meeting . As noted above, she

absolutely denied the other statements in the Appraisal II.

32 . Shortly after receiving the Appraisal II,

Ms. Harkleroad was involved in an automobile accident that kept

her out of work for the remainder of the 2008 - 2009 school year.

She had further surgical procedures on her back and remained on

pain medications as the 2009 - 2010 school year began.

33 . Patricia Nave, a veteran administrator, arrived at

Fruitland Park as assistant principal at the start of the 2009 -

2010 school year. Dr. DeJarlais assigned Ms. Nave to conduct

the Appraisal I performance evaluations of Ms. Har kleroad.

Ms. Nave did not know Ms. Harkleroad before August 2009, and

testified she was not aware that Ms. Harkleroad had anxiety

issues .

34 . On February 18, 2010, from 12:45 p.m. until 1:45 p.m.,

Ms. Nave observed Ms. Harkleroad and scored her on the Ap praisal

I form. Ms. Nave gave Ms. Harkleroad a score of 10 on the

appraisal , rating her unsatisfactory in two of the 12

subsections . Under the section "Teaching Procedures,"

Ms. Harkleroad was rated unsatisfactory in the sub - subsection

titled "Gives clea r and explicit directions" within the

subsection titled "Displays skills in making assignments."

Under the section "Classroom Management," Ms. Harkleroad was

rated unsatisfactory in the sub - subsections titled "Applies the

established rules and standards f or behaviors consistently and

equitably" and "Provides conscious modeling to modify attitudes

and behaviors" within the subsection titled "Creates and

maintains positive environments in which students are actively

engaged in learning."

35 . In the area of Teaching Procedures, Ms. Nave testified

that in making an assignment, the teacher is expected to use

appropriate vocabulary . The teacher tell s the students what the

assignment is and when it is due , then checks with the students

to ensure they comprehend the assignment before releasing them

to do the work. Ms. Harkleroad did not make a comprehension

check. She simply told the students what to do.

36 . In the area of Classroom Management, Ms. Nave had

"many, many concerns" regarding Ms. Harkleroad's "cons cious

modeling to modify attitudes and behaviors." Ms. Harkleroad

made unacceptable comments to students throughout the lesson,

such as: "I don't understand what you're not getting, probably

because you're not paying attention," "Your rudeness scale is

go ing up," and "You are all just counting, not paying attention

to what you are counting."

37 . Ms. Nave found that Ms. Harkleroad was not setting a

proper example to the students. The teacher is expected to be

respectful and to set an example by being fair . Ms. Harkleroad

was neither consistent nor fair. At times, she would scold the

students for calling out without raising their hands, but at

other times she would allow them to call out. Some children

were walking around the room when they should have b een sitting

down for the lesson. Ms. Harkleroad admonished some of the

students for walking around but allowed others to do it. She

allowed the students to engage in off - task behavior.

38. Ms. Harkleroad testified that in her experience ,

evaluations las t for about 35 minutes. She testified that she

was doing fine for the first 35 minutes of Ms. Nave's

evaluation. However, when Ms. Nave stayed beyond the 35 - minute

mark, Ms. Harkleroad began to panic, believing that Ms. Nave

intended to stay until she co uld find something wrong . Her

performance fell apart in the latter part of the hour .

Ms. Harkleroad stated that she told Ms. Nave about her panic

disorder after the evaluation .

39. Ms. Nave noted no dra matic change in Ms. Harkleroad's

performance from t he first half to the second half of her one -

hour observation. Ms. Nave also had no recollection of

Ms. Harkleroad discussing her panic disorder at any time, before

or after the evaluation.

40 . When a teacher receives a deficient Appraisal I, the

NEAT pro cedures require that the teacher also receive a

Prescription/Assistance form to outline areas for improvement,

recommendations on how to accomplish those improvements, and a

time period for a follow - up observation.

41 . Ms. Nave met with Ms. Harkleroad o n February 22, 2010

to go over the Prescription/Assistance form. Ms. Nave noted the

areas of deficient performance and recommended that

Ms. Harkleroad review sections of the IPPAS manual that

prescribe methods for the areas in which she had been found

def icient and watch certain DVDs on effective teaching methods.

42 . Ms. Nave gave Ms. Harkleroad four weeks, rather than

the usual three weeks, to correct the deficiencies and undergo

another observation. To further lessen the pressure on

Ms. Hark le road, Ms. Nave exercised her prerogative to use the

February 18, 2010 , Appraisal I as an "observation" rather than a

formal appraisal that would be counted against Ms. Harkleroad.

43 . School Board records indicated that Ms. Harkleroad

checked out the recommende d DVDs from the Fruitland Park

library. Ms. Harkleroad testified that she watched the DVDs.

44 . Ms. Nave performed a second Appraisal I on

Ms. Harkleroad on March 26, 2010. This appraisal also resulted

in a total score of 10. On this appraisal, deficie ncies were

found under the sections titled "Classroom Management" and

"Presentation and Knowledge of Subject Matter."

45 . As to Classroom Management, Ms. Harkleroad was rated

unsatisfactory in the same sub - subsections as on the

February 18, 2010 , appraisa l: "Applies the established rules and

standards for behaviors consistently and equitably" and

"Provides conscious modeling to modify attitudes and behaviors"

within the subsection titled "Creates and maintains positive

environments in which students are ac tively engaged in

learning."

46 . As to Presentation and Knowledge of Subject Matter,

Ms. Harkleroad's performance was found unsatisfactory in the

sub - subsection titled "Uses questioning techniques" under the

subsection titled "Communicates and presents su bject matter in a

manner that enables students to learn."

47 . Ms. Nave testified that in the area of questioning

techniques, the preferred technique is to ask a question, wait

for the students to process the question, and then call on one

student to answe r the question. Ms. Harkleroad was asking

"multiple questions," meaning that she would ask a question,

then ask another question or ask the same question in a

different way, before the students had a chance to respond.

Ms. Nave stated that teachers are c ounseled not to ask multiple

questions because it confuses the children.

48 . Ms. Nave stated that Ms. Harkleroad failed to exhibit

another aspect of proper questioning. A teacher should ask a

question, and then call the name of a student to answer the

qu estion. Asking the question before calling on a student

ensures that the whole class pays attention to the question. If

the teacher calls on one student, then asks the question, the

other children are off the hook and feel free to pay less

attention. Ms . Harkleroad frequently called on student s before

asking a question.

49. Ms. Harkleroad agreed that her performance during this

evaluation was "awful." Ms. Nave had come in to the classroom a

day or two before and stayed for about 25 minutes. According to

Ms. Harkleroad, "Everything went great. I thought that was my

evaluation. A couple days later, here she comes in again. And

immediately that's like, 'Okay, what are they doing? They

couldn't find anything wrong that time, so they're coming in to

fin d something wrong this time?'" She had a panic attack, and

knew that the evaluation was "horrible."

50. Again, Ms. Nave made no note of the dichotomy claimed

by Ms. Harkleroad. Her observations were consistent over time.

Ms. Nave saw no "great" lessons taught by Ms. Harkleroad .

Nonetheless, Ms. Nave continued to encourage Ms. Harkleroad to

improve her performance and genuinely believed that "she could

get it together" with hard work and a sincere commitment to the

recommendations she was receiving.

51 . On March 29, 2010, Ms. Nave completed a

Prescription/Assistance form and reviewed it with

Ms. Harkleroad. Ms. Nave again stated the areas of deficient

performance and listed sections of the IPPAS manual that

addressed Ms. Harkleroad's deficiencies. Ms. Nave also obtained

the assignment of Linda Bradley, a School Board employee who

works as a mentor to beginning teachers, to visit

Ms. Harkleroad's class every week to observe and assist her with

her ongoing remediation strategies.

52 . The Prescription/As sistance form provided that

Ms. Harkleroad would correct her deficiencies by the end of the

school year, June 9, 2010. Ms. Harkleroad would then go through

a 90 - day performance probation period during the upcoming school

year .

53 . Also on March 29, 2010, Dr. DeJarlais issued a

memorandum to Ms. Harkleroad titled "Performance Probation" that

read as follows:

Pursuant to the provisions of Florida

Statutes 1012.34, I am writing to inform you

that you have performance deficiencies in

the areas of Classroom Ma nagement and

Presentation and Knowledge of Subject

Matter. Based on the deficiencies, I am

placing you on performance probation for 90

calendar days beginning on 8 - 23 - 2010. The

90 calendar days will end on November 23,

2010.

54 . By letter dated March 31, 2010, Superintendent of

Schools Susan Moxley warned Ms. Harkleroad of the consequences

of failure to correct her performance deficiencies:

Pursuant to Florida Statutes 1012.33, I am

writing to inform you that performance

deficiencies have been identifi ed by your

principal. I understand that your principal

has already met with you and made

recommendations for improvement. Your

principal will provide assistance to help

you correct the performance deficiencies

during the subsequent school year. Please

b e advised that your contract with the Lake

County Schools District may be terminated

without correction of these performance

deficiencies.

Pursuant to s. 1012.33, you may request to

meet with the Superintendent or her designee

for an informal review of th e determination

of unsatisfactory performance. You may also

request to be considered for a transfer to

another appropriate position under a

different supervising administrator for the

subsequent school year. Such transfer,

however, does not reverse this year's

identification of performance deficiencies.

55 . Both Ms. Nave and Dr. DeJarlais testified as to other

problems with Ms. Harkleroad's performance in the classroom.

The parents of two children in Ms. Harkleroad's class complained

that their childre n were receiving too many disciplinary

referrals to the office. Upon investigation, the administrators

agreed with the parents and Ms. Harkleroad was counseled on the

issue.

56 . As an alternative to referring minor disciplinary

cases to the office, teach ers a t Fruitland Park are allowed to

send students to another teacher's classroom for a time. Placed

in a strange class with students who do not know him, the

recalcitrant student usually will calm down and quietly do his

work. Ms. Harkleroad 's grade lev el peers complained to Ms. Nave

that Ms. Harkleroad took excessive advantage of this option,

sending children to their classrooms more frequently than should

have been necessary.

57 . Ms. Nave's major problem with Ms. Harkleroad was her

classroom managemen t, her "with - itness," in Ms. Nave's

terminology. Ms. Harkleroad too often appeared unaware of the

things she was saying to the children, and unaware of what the

children were doing in the classroom. She would not notice that

children were up and walking around the classroom during

lessons. Ms. Nave stated that during her observations, a s many

as 12 out of 22 children in Ms. Harkleroad's classroom would not

be focused on the lesson , and Ms. Harkleroad did nothing to put

them back on task.

58 . Dr. DeJarla is noted that some parents had complained

about Ms. Harkleroad's odd behavior at a student assembly. Her

speech was slurred, she called out the same student's name more

than once, and she seemed disoriented. Dr. DeJarlais witnessed

the assembly, and agre ed with the parents that there was a

problem. She spoke to Ms. Harkleroad about maintaining a sense

of awareness on stage. 2 /

59. Dr. DeJarlais mentioned several other minor incidents.

In the spring of 2010, Ms. Harkleroad did not fill out her

report car ds correctly. She once walked into the wrong grade

level meeting and had to be directed to the right one. There

was an incident in which she placed a child on the floor during

a disciplinary timeout, and Dr. DeJarlais counseled her to use a

desk. During a walkthrough, Dr. DeJarlais saw Ms. Harkleroad

teaching the wrong subject. In each of these instances,

Dr. DeJarlais counseled Ms. Harkleroad rather than giving her an

official disciplinary or performance write - up.

60 . Ms. Harkleroad was convince d that Dr. DeJarlais was

intentionally using her panic disorder to get rid of her. This

was based partly on a conversation Ms. Harkleroad claimed to

have overheard in which Dr. DeJarlais referred to Ms. Harkleroad

as a "liability" because of her use of pa in medications.

61 . Ms. Harkleroad believed that Dr. DeJarlais thought of

her as a drug addict . She testified that Dr. DeJarlais made

frequent comments that insinuated that she was an addict, asking

whether she had a "problem" or needed "counseling."

Ms. Harkle ro ad believed these insinuations were intended to add

to the pressure she felt at school and therefore increase the

anxiety and panic she would feel during her evaluations.

62 . Dr. DeJarlais denied ever calling Ms. Harkleroad an

addict or even suggesting such a thing. She did recall that she

and Ms. Nave had conversations with Ms. Harkleroad about her

nodding off in front of the class, and that Ms. Harkleroad

mentioned that she might need to adjust her medications.

63 . Dr. DeJarlais did not pry into the kinds of

medications Ms. Harkleroad was taking. Ms. Harkleroad spoke to

her several times in general terms about seeking help for

medical conditions such as back pain. Dr. DeJarlais' only

suggestion regarding counseling came when Ms. Harkle road told

her that she feared she was having a nervous breakdown .

Dr. DeJarlais credibly denied doing anything to intimidate or

humiliate Ms. Harkleroad.

64 . Ms. Nave confirmed that she had seen Ms. Harkleroad

appear to be sleeping or nodding off while s tanding in front of

the class. At the time, Ms. Nave was unaware that

Ms. Harkleroad took prescribed pain medications. Ms. Nave

stated that Ms. Harkleroad was unaware that she was nodding off

and denied it until Dr. DeJarlais confirmed that two other

per sons had reported seeing Ms. Harkleroad nod off. At that

point, Ms. Harkleroad stated she would go see a physician.

65 . Ms. Harkleroad testified that her physician assured

her that she could not have been falling asleep on her feet.

The physician stated that one of her medications may have been

causing mini seizures that resembled nodding off.

Ms. Harkleroad testified that she passed this information on to

both Dr. DeJarlais and Ms. Nave, though neither of the

administrators recalled such a conversation .

66 . Given her feelings about Dr. DeJarlais, it was not

surprising that Ms. Harkleroad chose the option of transferring

to another school for the 2010 - 2011 school year. Ms. Harkleroad

testified that she chose a transfer only after Dr. DeJarlais

made it clear that she would prefer for Ms. Harkleroad to move

on to another school.

67 . Dr. DeJarlais denied expressing such a preference.

Ms. Nave recalled that she and Dr. DeJarlais met with

Ms. Harkleroad to discuss her options for the 2010 - 2011 school

year, which included transferring to another school or trying to

work through the probationary process at Fruitland Park.

Ms. Nave testified that when the discussion turned to the 90 - day

probationary period, Ms. Harkleroad mentioned that she might be

having a nervous breakdown. This conversation occurred near the

end of the school year, and was the first mention of any mental

problems that Ms. Nave could recall.

68. Ms. Harkleroad testified that the "nervous breakdown"

conversation was more complicated than D r. DeJarlais and

Ms. Nave indicated. Ms. Harkleroad stated that she told the

administrators that she was having multiple anxiety attacks, one

after the other, and that she would have a nervous breakdown "if

they kept on pushing me and pushing me."

69 . Though she had requested assignment to a middle

school, Ms. Harkleroad was transferred to Beverly Shores

Elementary School ("Beverly Shores") for the 2010 - 2011 school

year and assigned to a third - grade classroom.

70 . At the end of the 2009 - 2010 school y ear, the School

Board notified Jeffrey Williams, the principal at Beverly

Shore s , that Ms. Harkleroad would be joining his staff in August

2010. The notice informed Mr. Williams that Ms. Harkleroad was

on performance probation , and that her issues were cl assroom

management and presentation of subject matter . Mr. Williams

also received a phone call from Dr. DeJarlais to discuss the

transfer . Dr. DeJarlais did not go into the details surrounding

Ms. Harkleroad's probation aside from stating that she believ ed

the move would be good for Ms. Harkleroad .

71 . Mr. Williams contacted Ms. Harkleroad and suggested

they meet to discuss her transition to Beverly Shores.

Ms. Harkleroad met with Mr. Williams at his office.

Ms. Harkleroad told Mr. Williams that she h ad received a

deficiency in her IPPAS evaluation and had requested a transfer,

though Beverly Shores was not really where she wanted to be.

Ms. Harkleroad mentioned that she had a back problem.

Mr. Williams did not recall anything in the conversation

con cerning panic attacks, an anxiety disorder, or any other

condition that would hinder Ms. Harkleroad's ability to pass an

Appraisal I evaluation.

72 . Ms. Harkleroad denied telling Mr. Williams that she

did not want to be at Beverly Shores, though she con ceded that

she told him she would rather be in a middle school because her

back problems made it difficult to keep up with younger

children. Ms. Harkleroad testified that she told Mr. Williams

about her panic disorder, and further told him that she could

not take medication for it because of the medication she took

for her back pain. She requested that Mr. Williams use the PG -

13 evaluation tool, or record her class, anything other than

having people come into her classroom to judge her. She said

that Mr. Williams replied that the rules required the use of the

Appraisal I.

73 . Mr. Williams did not see Ms. Harkleroad again until

school started in August 2010. He assigned assistant principal

Tanya Rogers to be the supervising administrator handling all

iss ues related to Ms. Harkleroad's job performance. During the

first 90 days of the 2010 - 2011 school year, Mr. Williams limited

his involvement to walkthroughs of Ms. Harkleroad's classroom.

74 . Ms. Rogers is an experienced assistant principal who

has perfo rmed many teacher evaluations under the provisions of

the IPPAS and the CBA. Ms. Rogers knew that Ms. Harkleroad was

on performance probation, and saw to it that her

Prescription/Assistance form from Fruitland Park was implemented

at Beverly Shores. Lind a Bradley was retained as

Ms. Harkleroad's instructional coach, and Ms. Harkleroad was

offered classes through the school's learning resource center.

Ms. Rogers conducted frequent classroom walkthroughs and met

with Ms. Harkleroad to assist her in prepari ng for her

evaluation.

75 . Upon her arrival at Beverly Shores in August,

Ms. Harkleroad discovered that her classroom was "filthy. There

were mouse droppings all over. It took four of us six hours to

get the room just clean enough that I'd bring my stuf f in there.

No air conditioning. . . It was almost six weeks before that air

conditioning was fixed."

76. Mr. Williams testified that the classroom was clean

when Ms. Harkleroad arrived at the school in August 2010.

77 . Ms. Harkleroad estimated that t he air conditioning was

not repaired until September 27, and testified that the

temperature reached 100 degrees in the afternoons. She had

complained to Ms. Rogers but nothing was done until the date of

the second observation by Ms. Rogers, when Ms. Harkl eroad

repeatedly noted how hot it was in the classroom and how

difficult for the students to concentrate on their lessons.

7 8. Ms. Harkleroad also testified that there was a

"horrible" burning smell in the classroom . She complained to

Mr. Williams ab out it. Eventually, on December 9, 2010, the

Lake County Health Department came to the school to investigate

the source of the smell. Ms. Harkleroad denied having called

the Health Department.

7 9. Ms. Rogers agreed that Ms. Harkleroad complained about

t he air conditioning in September. However, Ms. Rogers

testified that she entered a work order and that the air

conditioning was repaired on September 7. Ms. Rogers recalled

no complaints about a smell in the classroom, though she did

acknowledge that the Health Department was at the school on

December 9, and that it found everything in Ms. Harkleroad's

classroom to be in satisfactory condition.

80. Mr. Williams recalled that Ms. Harkleroad complained

about an odor in her classroom. Mr. Williams was co nvinced that

Ms. Harkleroad had called the Health Department for the simple

reason that the inspectors went straight to her classroom when

they arrived at the school. However, Mr. Williams had no firm

evidence that Ms. Harkleroad made the call and no way of knowing

whether a concerned parent had made the call. In the absence of

any stronger evidence, Ms. Harkleroad's denial is credited.

81. There was no indication that either Ms. Rogers or

Mr. Williams took retaliatory action against Ms. Harkleroad for

h er various complaints about conditions in her classroom, or

that the performance appraisals Ms. Harkleroad received at

Beverly Shores were based on anything other than her performance

in the classroom.

82 . As part of her efforts to help Ms. Harkleroad pre pare

for her Appraisal I, Ms. Rogers conducted two classroom

observations using the " Screening/Summative Observation

Instrument" of the Florida Performance Measurement System

("FPMS"). This form was developed by the Florida Department of

Education t o enab le an observer to calculate the frequency of

effective and ineffective teaching techniques .

83 . In the first observation, conducted on September 7,

201 0 , Ms. Rogers found performance deficiencies in the areas of

classroom management and presentation and k nowledge of subject

matter. In the second observation, conducted on September 27,

2010, Ms. Rogers found performance deficiencies in the same two

areas, particularly in the area of managing student conduct.

84 . Ms. Rogers testified that she saw a great d eal of

choral reading and review of prior knowledge taking place in the

classroom but observed no teaching of new content. She also

noted that Ms. Harkleroad had a punitive approach to classroom

management, and took a sarcastic tone with the children that

tended to escalate discipline problems rather than calm them.

85 . Based on her observations, Ms. Rogers wrote a

Prescription/Assistance form on September 29, 2010, and met with

Ms. Harkleroad to go over the needed improvements. Ms. Rogers

recommended we ekly visits by Ms. Brad ley, who would conduct FPMS

observations in the problem areas and provide specific feedback

to Ms. Harkleroad. Ms. Rogers also recommended specific classes

offered at the School Board's staff development training

facility: "Increasi ng Student Engagement," "Motivating

Students," and "Classroom Management for Elementary Teachers."

Ms. Rogers wrote that Ms. Harkleroad "will correct these

behaviors by Oct ober 25, 2010, two weeks after staff development

opportunity."

86 . Ms. Harkleroad testified that she attended one of the

recommended classes, but found that it was unrelated to anything

occurring in her classroom. She declined to attend the other

classes.

87 . As the end Ms. Harkleroad's 90 - day performance

probation approached, Ms. Rog ers notified Ms. Harkleroad of her

intent to perform the Appraisal I. Ms. Harkleroad requested a

conference with Ms. Rogers prior to the evaluation . At the

conference, Ms. Harkleroad requested that Mr. Williams perform

the Appraisal I evaluation.

88 . Ms . Rogers testified that Ms. Harkleroad told her that

she found it difficult to respect women in positions of

authority. Ms. Harkleroad believed that women should be at home

taking care of their children, and that society's problems could

be traced to wome n working outside the home.

89 . Ms. Rogers found this logic confusing because

Ms. Harkleroad was herself a woman working outside the home.

When Ms. Rogers pointed this out, Ms. Harkleroad responded that

she did not have children. Ms. Rogers responded that her own

children were grown and not living with her. Ms. Harkleroad

asked Ms. Rogers whether her daughter stayed home with her

children. Ms. Rogers replied that her daughter worked.

Ms. Harkleroad said, "See, that's what I'm talking about.

That's what's wrong with society."

90 . At the hearing, Ms. Harkleroad testified that her

request had nothing to do with any general complaint about women

in the workplace. 3 / Her problem was wi th Ms. Rogers, whom she

found to be unreasonably critical. Ms. Roger s conducted her

first observation before Ms. Harkleroad even had a chance to

learn the names of the children in her classroom , then told

Ms. Harkleroad that she was an incompetent teach er , which caused

Ms. Harkleroad to lose all respect for her. Thus, she told

Ms. Rogers that she preferred to have Mr. Williams perform her

Appraisal I.

91. Ms. Rogers' version of the conference with

Ms. Harkleroad is credited.

9 2 . Mr. Williams testified that Ms. Rogers came to him and

told him that Ms. Harkleroad did not r espect women in authority.

Ms. Harkleroad did not think she could get a fair evaluation

from Ms. Rogers and requested that Mr. Williams perform the

appraisal. Without delving too deeply into the reasons for

Ms. Harkleroad's request, Mr. Williams agreed t o perform the

Appraisal I.

93 . Ms. Rogers and Mr. Williams agreed that he declined to

take the file that Ms. Rogers had developed on Ms. Harkleroad.

He wanted a clean slate, and did not want to be influenced by

the prior observations of Ms. Rogers. He w anted to evaluate

what was happening in the classroom without preconceptions.

94. Mr. Williams intended to evaluate Ms. Harkl e road as he

would any other teacher. He entered Ms. Harkleroad's classroom

several times during the week before the evaluation an d

performed a lengthy walkthrough to assess the overall learning

environment.

95 . Mr. Williams conducted the Appraisal I on or about

November 22, 2010. 4 / He gave Ms. Harkleroad a score of 11.

Mr. Williams found a deficiency in the section titled

"Presen tation and Knowledge of Subject Matter." Ms. Harkleroad

was rated unsatisfactory in the subsection titled, "Communicates

and presents subject matter in a manner that enables students to

learn." This subsection contains seven sub - subsections, and

Mr. Will iams graded Ms. Harkleroad unsatisfactory in six of

them: "Treats concepts/cause and effect/or states and applies

rules;" "Teacher directed/guided practice is provided;" "Uses

questioning techniques;" "Directs lesson;" "Provides periodic

review;" and "Pose s problems, dilemmas, and questions to promote

critical thinking."

96 . Mr. Williams found these deficiencies because there

was no direct instruction taking place in the classroom that

would satisfy those areas of observation. Shortly after the

evaluati on, Ms. Harkleroad told him that she "just didn' t have

it today" and that she knew her performance had not been good.

97 . Ms. Harkleroad testified as to her problems with

Mr. Williams' evaluation . These problems were related to her

panic disorder and to an illness she claimed she had on the day

of the evaluation.

98. When Mr. Williams did his preparatory walkthrough of

her classroom on the Friday before the evaluation,

Ms. Harkleroad mistakenly believed that he was conducting the

Appraisal I. As she h ad with Ms. Nave's earlier pre - evaluation

classroom visit, Ms. Harkleroad claimed that the lesson went

very well . S he was jubilant that she had passed the evaluation.

99. Mr. Williams noted no variance between what he

observed on his walkthroughs of Ms. Harkleroad's classroom and

what he observed during the November 22, 2010 , Appraisal I.

100 . On the following Monday morning, Ms. Harkleroad was

at an IEP meeting when she started pouring sweat and finding it

difficult to breathe. The problem became worse as the day went

by. S he told Mr. Williams how sick she felt and that she might

have to go home. Less than 30 minutes later, Mr. Williams

appeared in her classroom to conduct the Appraisal I.

Ms. Harkleroad stated that Mr. Williams' arrival "just blew i t."

She knew then that "all they wanted to do was fire me. They

didn't care how they did it."

101 . After the evaluation, Ms. Harkleroad's husband picked

her up from school because she was too ill to drive.

Ms. Harkleroad testified that she was diagnose d with bacterial

pneu monia. She did not return to school until the Monday after

Thanksgiving, November 29, at which time Mr. Williams met with

her to review her evaluation.

102 . Mr. Williams testified that Ms. Harkleroad said

nothing to him about being s ick and that he would have

reschedule d the evaluation had he known. Before and during the

evaluation, she showed no signs of illness. It was only after

the evaluation , when they were discussing her poor performance ,

that Ms. Harkleroad appeared to become ill. Mr. Williams called

the school nurse and Ms. Harkleroad's husband. Ms. Harkleroad

later told him she had been hospitalized, but Mr. Williams had

no firsthand knowledge of her medical treatment.

103 . On November 29, 2010, Mr. Williams conducted a p ost -

evaluation conference with Ms. Harkleroad. He presented her

options, which at that point were limited to resigning her

position or facing formal termination procedures by the School

Board. To Mr. Williams' surprise, Ms. Harkleroad chose

termination. He was surprised because termination would likely

end Ms. Harkleroad's teaching career. When Mr. Williams

inquired further, Ms. Harkleroad told him that she chose

termination in order to preserve her unemployment benefits.

104 . At the hearing, Ms. Harkl eroad testified that she

chose termination because resigning would have constituted an

admission she had done something wrong.

105. As to aspects of Ms. Harkleroad's performance outside

the formal evaluation , Mr. Williams stated that there had been a

coup le of parent complaints . O ne child was moved out of her

classroom due to what the parent termed "poor communication"

with Ms. Harkleroad. Mr. Williams had to tell Ms. Harkleroad to

stop asking the child why he had moved from her class.

106 . In a memora ndum to Dr. Moxley dated December 9, 2010 ,

and titled "Recommendation of Termination," Mr. Williams wrote

as follows , in relevant part :

Pursuant to Florida Statutes 1012.34, I am

writing to inform you that Mrs. Deborah

Harkleroad has completed his/her 90 - c alendar

day performance probation and has failed to

correct his/her performance deficiencies. I

do not believe that Mrs. Harkleroad can

correct said deficiencies and his/her

employment should be terminated. I have

complied with all applicable provisions of

Florida Statutes 1012.34....

107 . On the morning of December 13, 2010, Ms. Harkleroad

wrote the following email to Dr. Moxley:

Before a final decision is made on my

employment status, I would like the

opportunity to meet with you in orde r to

discuss my current situation. It is my

contention that I was performing my duties

as a teacher in a manner that supported

Literacy First guidelines on the date and

time my evaluation was conducted. If I had

been doing any type of activity other than

something similar to what I was doing, I

would not have been in compliance with

established guidelines.

108 . Literacy First is a research - based, data - driven,

comprehensive program designed to accelerate reading

achievement. Beverly Shores implements th e Literacy First

program, 5 / which includes explicit directives as to what should

take place in whole group and small group instruction.

109 . Ms. Harkleroad did not raise Literacy First concerns

with Mr. Williams at the time of the evaluation or even at th e

November 29 conference. After the fact, however, she contended

that during the hour in which Mr. Williams conducted the

evaluation, the Literacy First schedule called for her to

perform whole group activities, which do not include

"instruction." The ch ildren were building fluency by engaging

in group reading practice. Had Mr. Williams stayed through the

next hour, he would have seen explicit instruction when the

class was broken into small groups.

110 . Ms. Harkleroad's argument that Literacy First

man dated that she not teach the class is not credited. As early

as her first observation on September 2, 2010, Ms. Rogers had

noted that Ms. Harkleroad's whole group method appeared limited

to "echo reading" rather than any of the other various

strategies ca lled for by the Literacy First program . Ms. Rogers

did not formalize this observation in writing because echo

reading is a legitimate Literacy First strategy, and she wanted

to give Ms. Harkleroad the benefit of the doubt.

111 . Mr. Williams understood Ms . Harkleroad's class

schedule, and as principal of Beverly Shores he understood the

Literacy First guidelines. When he conducted his evaluation, he

knew that Ms. Harkleroad's class was involved in whole group

reading. It was in this context, with a full understanding of

what should have been happening under Literacy First, that

Mr. Williams concluded that no instruction took place during his

observation. Ms. Harkleroad was not leading the class.

112 . Dr. Moxley did not meet with Ms. Harkleroad. By

lett er dated December 13, 2010, Dr. Moxley informed

Ms. Harkleroad that, pursuant to s ection 1012.34, Florida

Statutes, Ms. Harkleroad had failed to correct performance

deficiencies identified by her principal and Dr. Moxley intended

to recommend to the School Board that Ms. Harkleroad's

employment be terminated as of January 10, 2011.

113. At the hearing, Ms. Harkleroad contended that she had

placed the School Board on notice of her panic disorder before

the 2009 - 2010 school year, and that she specifically re quested

that school administrators use the PG - 13 evaluation process as

an accommodation to her disability.

114. Ms. Nave recalled Ms. Harkleroad requesting that she

be allowed to use the PG - 13 evaluation. Ms. Nave stated that

Ms. Harkleroad gave no reaso n for the request, other than an

assertion that she had earned the right not to go through the

Appraisal I process.

115. Ms. Harkleroad testified that she also pleaded with

Mr. Williams to allow her to use the PG - 13 evaluation because of

her panic disorde r. Mr. Williams flatly and credibly denied

that any such conversation occurred. 6

116. Dr. DeJarlais had no recollection of Ms. Harkleroad

asking for the PG - 13 evaluation. She testified that

Ms. Harkleroad made no complaints about the Appraisal I

proced u re until after the evaluation had been completed.

117. T he testimony of the four administrators permits the

inference that, far from being open with her superiors about her

mental and physical problems, Ms. Harkleroad tended to downplay

them because of th e intense scrutiny she felt she was receiving

regarding her job performance. On several occasions,

Ms. DeJarlais and Ms. Nave made tentative inquiries into

Ms. Harkleroad's emotional well being only to have

Ms. Harkleroad sidestep their questions with vag ue assurances

that she was seeing a doctor. 7 / Out of respect for her privacy,

the administrators left it at that and focused on her classroom

performance .

118. T he first duty of the school administrators is to

ensure that the children in their charge rec eive adequate

instruction from a qualified, competent teacher. If

Ms. Harkleroad's panic disorder required an accommodation, it

was her responsibility to come forward and request it. The

evidence established that she did not do so. It was not the

duty o f her superiors to tease the information out of her.

119. As Mr. Williams pointed out, he is responsible for 55

teachers at Beverly Shores. He does not have the time to delve

into all their personal lives and medical conditions, and tries

to respect th eir privacy. Under all the circumstances, his

focus was properly on the classroom.

120. Aside from alleging a conspiracy of sorts to get rid

of her, 8 / Ms. Harkleroad could not explain why four experienced

school administrators would lie about having no recollection of

talking with her about her panic disorder , though they all

testified that they knew about her back problems and had at

least some knowledge that she took pain medications. Ms.

Harkleroad testified that two previous principals at Fruitla nd

Park, Joan Denson and Charles McDaniel, had been aware of and

made accommodations for her panic disorder. She called neither

of these former principals as witnesses to corroborate her

version of events.

121. The failure to corroborate her testimony wa s a theme

of Ms. Harkleroad's overall presentation. She offered no

documentary evidence regarding her medical condition. None of

her physicians w ere called to testify. No fellow employees,

friends or neighbors were called to testify that Ms. Harkleroad

had discussed her panic disorder with them. Ms. Harkleroad

testified that her students and their parents loved her as a

teacher, but she called none of them to testify.

Ms. Harkleroad's only supportive witness, teacher Norma Jean

Miller, had not worked w ith Ms. Harkleroad for several years and

only knew her as a literacy coach, not a classroom teacher.

Ms. Miller knew of Ms. Harkleroad's back problems, but said

nothing about a panic disorder.

122. In the absence of corroborating evidence, it strains

credulity beyond all reason to accept the sole word of

Ms. Harkleroad that Dr. DeJarlais decided to get rid of her

because of her drug use, realized that Ms. Harkleroad's panic

disorder was a means to insure that she failed her evaluations,

then apparently recruited the administration of another school

to complete the process. 9 /

123. Because there is no evidence beyond Ms. Harkleroad's

less than credible testimony to establish that the evaluation

process was conducted in bad faith, it is found that the

adm inistrators at Fruitland Park and Beverly Shore judged

Ms. Harkleroad on the merits of her teaching performance and

graded that performance accordingly.

124. Ms. Harkleroad complains that the criteria used in

the evaluations were vague to the point of o pacity , and did not

take into account that different teachers may have different

approaches to their work . She believes that some of the

standard rules for classroom instruction are "ridiculous." When

Ms. Rogers told her that she should make the children raise

their hands and be called on before speaking in class, she

airily dismissed the criticism as a "philosophical difference . "

Though the specific problems with Ms. Harkleroad's cl assroom

performance were eminently correctible, her obstinacy and/or

obt useness in rejecting pointed advice from her superiors made

it clear that she was highly unlikely ever to correct her

performance deficiencies.

125. T he evidence established that the process followed by

School Board personnel in evaluating Ms. Harkler oad's

performance before and during her probationary period followed

the letter of the IPPAS and the CBA, including the NEAT

procedure set forth in Section 12 of Article XI of the CBA. The

criteria and forms used to evaluate her performance were taken

dir ectly from the IPPAS Handbook.

126. However, even though all procedures were correctly

followed in the evaluation process, the School Board failed to

establish grounds for terminating Ms. Harkleroad's employment

pursuant to Section 1012.34(3), Florida Sta tutes, because it

failed to offer evidence, apart from the anecdotal reports of

the evaluators, that Ms. Harkleroad's teaching performance

adversely affected the academic performance of the students

assigned to her classroom. 10 / The assessment procedure i s to be

"primarily based on the performance of students," and the

absence of data such as FCAT scores or other objective

comparators renders the School Board's case insufficient under

s ection 1012.34, Florida Statutes . 11 /

127. The issue then becomes wheth er the School Board has

established sufficient grounds for "just cause" termination

pursuant to s ection 1012.33(1), Florida Statutes. On the sole

statutory ground available under the evidence of this case,

incompetency, the School Board has met its burden and justified

its decision to terminate Respondent's employment.

128. The evidence produced at the hearing demonstrated

that the School Board had just cause to terminate the employment

of Ms. Harkleroad for incompetenc y .

CONCLUSIONS OF LAW

129 . The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to s ection 120.569 and s ubsections 120.57(1)

and 1012.3 4 ( 3 )( d ), Florida Statutes .

130. Respondent is an employee of the School Board, and

holds a professional service contract pursuant to s ection

1012.33(3)(a) .

131 . The School Board has the burden to establish by a

preponderance of the evidence the grounds for disciplining

Respondent. See , e.g. , McNeill v. Pinellas Cnty . Sch . Bd . , 678

So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter Cnty . Sch .

Bd . , 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen v. Sch .

Bd . of Dade Cnty . , 571 So. 2d 568, 569 (Fla. 3d DCA

1990); Dileo v. School Board of Dade County , 569 So. 2d 883, 884

(Fla. 3d DC A 1990).

132. There are two statutory mechanisms by which a school

board may terminate the employment of an employee working under

a professional service contract: termination for cause pursuant

to Section 1012.33, Florida Statutes, and termination for

fa ilure to correct performance deficiencies within the 90 - day

probation period pursuant to Section 1012.34, Florida Statutes .

133. S ubs ection 1012.33(1)(a), Florida Statutes, provides

that a teacher's contract must contain provisions for dismissal

during th e term of the contract for "just cause ," which includes

" misconduct in office, incompetency, gross insubordination,

willful neglect of duty, or conviction of a crime involving

moral turpitude, " as those terms are defined by rule of the

State Board of Educa tion. The School Board in this case has

argued that Respo n dent's incompetenc y provides just cause for

the termination of her employment contract.

134. Florida Administrative Code Rule 6B - 4.009(1) defines

"incompetency" as follows:

(1) Incompetency is def ined as inability or

lack of fitness to discharge the required

duty as a result of inefficiency or

incapacity. Since incompetency is a

relative term, an authoritative decision in

an individual case may be made on the basis

of testimony by members of a pan el of expert

witnesses appropriately appointed from the

teaching profession by the Commissioner of

Education. Such judgment shall be based on

a preponderance of evidence showing the

existence of one (1) or more of the

following:

(a) Inefficiency: (1) re peated failure to

perform duties prescribed by law (Section

231.09, Florida Statutes) 12 / ; (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 educa tional

experience; or (3) repeated failure on the

part of an administrator or supervisor to

communicate with and relate to teachers

under his or her supervision to such an

extent that the educational program for

which he or she is responsible is seriously

impaired.

(b) Incapacity: (1) lack of emotional

stability; (2) lack of adequate physical

ability; (3) lack of general educational

background; or (4) lack of adequate command

of his or her area of specialization.

135. Section 1012.34(3), Florida Statu tes, authorizes the

termination of contracts for the failure to correct performance

deficiencies. Section 1012.34(1) and (2) requires each school

district to develop assessment instruments for all teachers and

administrators and establish procedures for s chool districts to

follow in identifying a teacher's performance deficiencies and

giving the teacher a chance to correct them. Section 1012.34(3)

provides , in relevant part :

The assessment procedure for instructional

personnel and school administrators mu st be

primarily based on the performance of

students assigned to their classrooms or

schools, as appropriate. Pursuant to this

section, a school district's performance

assessment is not limited to basing

unsatisfactory performance of instructional

personn el and school administrators upon

student performance, but may include other

criteria approved to assess instructional

personnel and school administrators'

performance, or any combination of student

performance and other approved criteria.

The procedures must comply with, but are not

limited to, the following requirements:

(a) An assessment must be conducted for

each employee at least once a year. The

assessment must be based upon sound

educational principles and contemporary

research in effective educ ational practices.

The assessment must primarily use data and

indicators of improvement in student

performance assessed annually as specified

in s. 1008.22 and may consider results of

peer reviews in evaluating the employee's

performance. Student performa nce must be

measured by state assessments required

under s. 1008.22 and by local assessments

for subjects and grade levels not measured

by the state assessment program. The

assessment criteria must include, but are

not limited to, indicators that relate t o

the following:

1. Performance of students.

2. Ability to maintain appropriate

discipline.

3. Knowledge of subject matter. The

district school board shall make special

provisions for evaluating teachers who are

assigned to teach out - of - field.

4. Ability to plan and deliver

instruction and the use of technology in the

classroom.

5. Ability to evaluate instructional

needs.

6. Ability to establish and maintain a

positive collaborative relationship with

students' families to increase s tudent

achievement.

7. Other professional competencies,

responsibilities, and requirements as

established by rules of the State Board of

Education and policies of the district

school board.

(b) All personnel must be fully informed

of the criteria an d procedures associated

with the assessment process before the

assessment takes place.

(c) The individual responsible for

supervising the employee must assess the

employee's performance. The evaluator must

submit a written report of the assessment to

t he district school superintendent for the

purpose of reviewing the employee's

contract. The evaluator must submit the

written report to the employee no later than

10 days after the assessment takes place.

The evaluator must discuss the written

report of a ssessment with the employee. The

employee shall have the right to initiate a

written response to the assessment, and the

response shall become a permanent attachment

to his or her personnel file.

(d) If an employee is not performing his

or her duties i n a satisfactory manner, the

evaluator shall notify the employee in

writing of such determination. The notice

must describe such unsatisfactory

performance and include notice of the

following procedural requirements:

1. Upon delivery of a notice of

uns atisfactory performance, the evaluator

must confer with the employee, make

recommendations with respect to specific

areas of unsatisfactory performance, and

provide assistance in helping to correct

deficiencies within a prescribed period of

time.

2. a. If the employee holds a professional

service contract as provided in s. 1012.33,

the employee shall be placed on performance

probation and governed by the provisions of

this section for 90 calendar days following

the receipt of the notice of unsatisfactor y

performance to demonstrate corrective

action. School holidays and school vacation

periods are not counted when calculating the

90 - calendar - day period. During the 90

calendar days, the employee who holds a

professional service contract must be

evaluated periodically and apprised of

progress achieved and must be provided

assistance and inservice training

opportunities to help correct the noted

performance deficiencies. At any time

during the 90 calendar days, the employee

who holds a professional service contract

may request a transfer to another

appropriate position with a different

supervising administrator; however, a

transfer does not extend the period for

correcting performance deficiencies.

b. Within 14 days after the close of the

90 calendar days, the evaluator must assess

whether the performance deficiencies have

been corrected and forward a recommendation

to the district school superintendent.

Within 14 days after receiving the

evaluator's recommendation, the district

school superintendent m ust notify the

employee who holds a professional service

contract in writing whether the performance

deficiencies have been satisfactorily

corrected and whether the district school

superintendent will recommend that the

district school board continue or te rminate

his or her employment contract....

136. The evidence established that the School Board

followed the procedures set forth in s ection 1012.34(3) in

relation to Ms. Harkleroad throughout the sequence of events set

forth in the above Findings of Fac t.

137. In Pinellas Cnty . Sch . Bd . v. Ferrier , Case No.

10 - 1152 (DOAH July 29, 2010), Administrative Law Judge Robert

Meale set forth the following persuasive analysis of s ection

1012.34 (3), herein adopted :

57. Much of the focus of the hearing was on

wh ether Petitioner proved an uncorrected

performance deficiency, within the meaning

of Section 1012.34. This statute assigns a

prominent role, in establishing a

performance deficiency, to student

achievement. The first sentence of Section

1012.34(3) states that the assessment

instrument must be based "primarily" on

student performance. The second sentence of

this subsection acknowledges that the

assessment instrument is not required to be

limited to student performance, but may

include other criteria. Lea ving no doubt,

though, Section 1012.34(3)(a) states that

the assessment instrument "must primarily"

use student data. These provisions require

no elaboration and are entirely consistent

with each other: for the purpose of

establishing an uncorrected perf ormance

deficiency as the basis for terminating a

teacher, a school district must assess the

teacher based primarily, but not

exclusively, on student performance, which

is measured by state tests and, where not

available, local tests.

138. As in Ferr ier , the School Board's effort in the

instant case to terminate a teacher under s ection 1012.34,

Florida Statutes, fails due to the absence of objective data

regarding the performance of students in her class.

139. However, t he assessment criteria set for th in Section

1012.34(3)(a)1. - 7. "enumerate important skills for a teacher to

possess," and proof of deficiency in those skills over time

constitutes just cause for termination of a teacher's

professional service contract under s ection 1012.33 . See

Ferrie r , Conclusion of Law 69.

140. Ms. Harkleroad was repeatedly counseled about the

same aspects of her job performance. She was given concrete

recommendations that she chose not to implement. Both Ms. Nave

and Ms. Rogers attempted to assist her in proper q uestioning

technique, but she resisted. Her willingness to cooperate with

her superiors was fatally compromised by her groundless belief

that she was the object of a conspiracy to fire her .

141. Ms. N a ve and Mr. Williams, the administrators who

conducted separate Appraisal I evaluations of Ms. Harkleroad

over the course of several months , independently noted the same

phenomenon, in virtually the same words: no instruction was

taking place in Ms. Harkleroad's classroom. Ms. Rogers noted

the same thing in her observations.

142. Ms. Harkleroad failed to maintain proper discipline

in her classroom. She failed to employ adequate techniques of

instruction in her classroom. She failed to create a classroom

environment conducive to learning. She failed to cor rect her

performance deficiencies despite being given multiple

opportunities to do so, and despite receiving explicit

recommendations on how to improve her performance in the

classroom.

143. The evidence presented at the hearing demonstrated by

a prepond erance of the evidence a Ð 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 . Ñ 13 / The demonstration of this aspect of

incompet ency is sufficient to establish just cause to terminate

Ms . Harkleroad's professional service contract.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the School Board enter a final order

terminatin g Respondent's professional service contract and

dismissing Respondent on the ground of incompetency.

DONE AND ENTERED this 24th day of June , 2011 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administra tive 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

th is 24th day of June , 2011 .

ENDNOTES

1 / Unless otherwise indicated, references to the Florida

Statutes are to the 2010 edition.

2 / Ms. Harkleroad did not recall this incident. She stated that

the slurred speech mig ht have been caused by a panic attack.

3 / In her deposition, however, Ms. Harkleroad testified that

female administrators are "petty, and I don't trust them."

4 / There was some uncertainty as to the exact date of the

evaluation because Mr. Williams com pleted the Appraisal I form

at his meeting with Ms. Harkleroad on November 29, 2010, though

Ms. Harkleroad was certain that the actual observation and

evaluation took place on the Monday before Thanksgiving,

November 22.

5 / Fruitland Park does not implem ent the Literacy First program.

6 / Mr. Williams recalled receiving an email from Ms. Harkleroad

in October 2010 requesting a transfer to a reading intervention

instructor position, in which Ms. Harkleroad noted that the

reduced physical demands would bet ter accommodate her

"disability." Mr. Williams testified that the requested

position was not available, and that he did not know

specifically what Ms. Harkleroad meant by her "disability"

unless it was to do with her back problems.

7 / Ms. Harkleroad in terpreted these inquiries as further efforts

to brand her a drug addict.

8 / Even if one were inclined to accept Ms. Harkleroad's

assertion that Dr. DeJarlais thought her a drug addict and a

liabilit y, and that Ms. Nave was dutifully following

Dr. DeJarla is' orders in finding Ms. Harkleroad's classroom

performance deficient, there was still no explanation as to how

or why this vendetta carried over to Beverly Shores. In any

event, Dr. DeJarlais ' denial of any ill will toward

Ms. Harkleroad is credited.

9 / It should be noted that Ms. Harkleroad testified as to a

personality conflict with Dr. DeJarlais and a professional

dislike of Ms. Rogers, but testified that she liked Mr. Williams

and had no personal issues with Ms. Nave beyond the fact that

she worked for Dr. DeJarlais . Mr. Williams and Ms. Nave are the

School Board employees who actually performed the evaluations of

Ms. Harkleroad.

10/ Ms. Nave testified that Ms. Harkle r oadÓs students had made

ÐaverageÑ scores on tests. She had no recollection tha t they

had performed poorly on the FCAT.

11/ The classroom evaluators did their job in assessing

Ms. HarkleroadÓs performance in accordance with the IPPAS and

the CBA. The failure of proof lies with the School Board, which

presumably had at hand the tes t scores to prove this element of

its case.

12 / Prior to the repeal of Chapter 231, Florida Statutes, by

section 1058, chapter 2002 - 387, Laws of Florida , Section 231.09,

Florida Statutes (2001) set for th the duties of instructional

personnel as follows:

( 1) The primary duty of instructional

personnel is to work diligently and

faithfully to help students meet or exceed

annual learning goals, to meet state and

local achievement requirements, and to

master the skills required to graduate from

high school pr epared for postsecondary

education and work. This duty applies to

instructional personnel whether they teach

or function in a support role.

(2) Members of the instructional staff of

the public schools shall perform duties

prescribed by rules of the dist rict school

board. The rules shall include, but are not

limited to, rules relating to a teacher's

duty to help students master challenging

standards and meet all state and local

requirements for achievement; teaching

efficiently and faithfully, using pre scribed

materials and methods, including technology -

based instruction; recordkeeping; and

fulfilling the terms of any contract, unless

released from the contract by the district

school board.

Florida Administrative Code Rule 6B - 4.009 has not been updated

to reflect the change in the statutes. The continuing validity

of the rule has not been questioned in this proceeding.

COPIES FURNISHED :

Stephen W. Johnson, Esquire

McLin & Burnsed

Post Office Cox 491357

Leesburg, Florida 34749 - 1357

Joseph C. Shoema ker, Esquire

Bogin, Munns & Munns, P.A.

628 South 14 th Street

Leesburg, Florida 34748

Susan Moxley, Superintendent of Schools

Lake County Schools

201 West Burlieigh Boulevard

Tavares, Florida 32778 - 2496

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 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.