12-000131TTS Lee County School Board vs. Jerry Zurzolo Status: Closed Recommended Order on Wednesday, May 9, 2012.

Summary: The School Board did not prove by a preponderance of evidence that just cause existed to terminate the employment of Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 12 - 0131TTS

)

JERRY ZURZOLO , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a fi nal hearing was conducted in this

case on March 7 through 9, 2012, in Fort Myers, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

School Di strict of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

For Respondent: Robert J. Coleman, Esquire

Coleman and Coleman

Post Office Box 2089

2080 McGregor Boulevard, Suite 202

Fort Myers, Florida 33902

STATEMENT OF THE ISSUE S

The issue s in this case are whether just cause exists to

terminate Respondent ' s employment with Petitioner based on

alleged incompetence, as defined by Florida Administrative Code

Rule 6B - 4.009(1); and whether Respondent failed to correct

performance deficiencies pursuant to section 1012.34(3), Florida

Statute (2011). 1/

PRELIMINARY STATEMENT

On December 12, 2011, Joseph Burke, Ed.D., superintendent,

notified Respondent, Jerry Zurzolo, that termination of his

employment was being rec ommended to the Lee County School Board

(the " Board " ). A Petition for Termination of Employment was

filed with the Board by the superintendent on December 14, 2011.

Respondent timely requested a formal administrative hearing to

contest the decision.

The Board forwarded the Petition to the Division of

Administrative Hearings (DOAH) on January 10, 2012, citing

Respondent ' s request for a formal administrative hearing. At the

final hearing, the Board called the following witnesses: Debra

Lee, third - grade te acher; Donna Cole, exceptional student

education ( " ESE " ) teacher; Melissa Taveras, teacher; Georgianna

McDaniel, director of Personnel; Christopher Cann, assistant

principal; Beth Bolger, assistant director for grants; Sandra

Strausser, principal of Coloni al Elementary School (the

" School " ); and Diane Sherman, coordinator for curriculum and

staff development. Petitioner ' s Exhibits 1 through 16 were

admitted into evidence. Respondent testified on his own behalf.

Respondent offered Exhibits 1 through 18 in to evidence, each of

which was accepted. (All hearsay evidence was admitted subject

to corroboration by competent, non - hearsay evidence. To the

extent such hearsay was not corroborated or not used to

substantiate other competent evidence, it will not be used as a

basis for any finding herein.)

The parties advised the undersigned that a transcript of the

final hearing would be ordered. They were given ten days from

the date the transcript was filed at DOAH to submit proposed

recommended orders. The Tra nscript was filed at DOAH on April 6,

2012; however, the parties requested and were given additional

time to file their proposed recommended orders. Each party

timely submitted a Proposed Recommended Order , and both parties '

submissions were given due con sideration in the preparation of

this Recommended Order.

FINDING S OF FACT

1. The Board is responsible for hiring, terminating, and

overseeing all employees at the School.

2. At all times relevant hereto, Respondent was an art

teacher in the Lee County sc hool system. During the 2009 - 2010

school year, Respondent taught the first semester (August through

December) at Portorff Elementary and the second semester (January

through May) at the School. He was assigned full time to the

School at some point during the 2010 - 2011 school year.

Respondent has been a teacher in the Lee County school system

since 2002. Prior to that, he taught two years in New York and

two years in North Carolina.

3. In each of his first nine years teaching in Lee County,

Respondent r eceived satisfactory performance evaluations. He

rarely received higher than satisfactory performance scores and

only two less - than - satisfactory scores. In his latest evaluation

(for the 2010 - 2011 school year), Respondent received " needs

improvement " sco res in the areas of professional behavior and

supervision. He rated satisfactory in planning and preparation,

punctuality, and logical thinking and decisions, but those areas

were noted as " focus areas, " meaning he needed to improve on

them. The 2009 - 201 0 evaluation had contained all satisfactory

scores, but again noted some focus areas.

4. At the end of the 2010 - 2011 school year, Respondent

received a generally satisfactory evaluation. He was given no

formal indication by his principal that his work wa s not

acceptable, but he had been told that he needed to improve in

some areas. His principal did not grade Respondent

unsatisfactory because she said if she gave him " needs

improvement " and provided him with assistance, he could correct

his shortcomings. O n August 4, 2011, right at the beginning of

the new school year, Respondent received a letter via hand -

delivery from the superintendent of schools. The letter advised

Respondent that he was being placed in the Intensive Assistance

Program ( " IAP " ). At that point, Respondent ' s principal had not

furnished him any informal assistance to correct his

deficiencies.

5. IAP is a program established to help teachers who are

struggling in any area of their work performance. IAP is also

generically referred to a s performance probation. The minutes of

the first IAP meeting indicated the stated purpose of the program

was to " provide resources and feedback for improvement in the

areas indicated as ' Needs Improvement ' and ' Unsatisfactory ' on

the Final Performance As sessment. " 2/ The IAP process is supposed

to last 90 days and consist s of a total of eight meetings.

During the IAP process, unannounced observations of Respondent ' s

classroom would be made by IAP team members. The observations

were to last for a minimum of 30 minutes each and would be

scheduled so that two observations would not occur on the same

day.

6. There is some question as to whether the IAP process

actually lasted 90 days. A letter from the superintendent dated

December 8, 2011, says the proces s started on August 18, 2011,

i.e., on the date of the first of the eight scheduled meetings.

The process was completed on November 30, 2011, the date of the

eighth meeting. At the initial meeting, the IAP team discussed

how the process would work, but t here was no substantive

assistance or feedback given. The first observation of

Respondent ' s classroom by a team member was done on August 22,

2011. Feedback and discussion of that observation (i.e., the

" assistance " part of IAP) did not occur until the s econd meeting

held on September 15, 2011. Ninety days from August 18, 2011,

would be November 16, 2011; 90 days from September 15, 2011,

would be December 14, 2011. However, due to the ultimate

findings made herein, an exact determination of the 90 - day p eriod

is not necessary.

7. According to the IAP process, three different observers

were to take turns sitting in on Respondent ' s classroom at random

times. The observers were : Strausser, the principal; Cann, the

assistant principal; and Sherman, the sta ff development director.

Respondent was teaching art, one of the " special " areas within

the S chool. He did not have a single class of students for the

entire school day; rather, he taught a different group of

children every class period. He would teach students ranging

from kindergarten to fifth grade throughout each day. In all, he

would see over 700 students during the rotation of classrooms

into his art class .

8. Respondent ' s classroom was observed on August 22, 2011,

for 36 minutes by Cann. On Sep tember 9, 2011, Strausser observed

for an unspecified amount of time. On September 12, 2011,

Sherman observed for an hour and 15 minutes. Their observations

were discussed at the September 15, 2011, meeting (the second

meeting in the IAP process). Among the observations made were

the following: that Respondent wheeled his chair from place to

place in the classroom rather than walking; that his cell phone

alarm went off, signaling time for clean - up rather than using the

alarm on his classroom smart board ; that he " yelled " at a

student; that he allowed students to draw on the smart board one

at a time rather than involving the entire class in an activity;

that he did not give students enough time to answer questions;

and that he misspelled words on the sma rt board.

9. Respondent explained that his smart board was

malfunctioning and needed to be repaired; that he never

intentionally " yelled " at anyone, but may have talked louder than

necessary; and that he rewarded students by allowing them to draw

on the s mart board. He also said he didn ' t know about the alarm

on the smart board , but that he would use it in lieu of his cell

phone (which was not even a functioning telephone; he used it

only as an alarm). He also agreed to allow more time for

students to an swer questions after they were posed.

10. There were observations on September 19, 2011 (35

minutes, Sherman); September 22, 2011 (35 minutes, Cann); and

September 23, 2011 (Strausser, length of time not provided). The

observations were discussed at the t hird IAP meeting on

September 26, 2011. The findings included: the classroom was

not neat and orderly; he should not try to hurry students in a

negative fashion; he should ask questions that require more

thought and reasoning by his students; he should s tick to his

academic plan; h e should use correct and appropriate words, i.e.,

octopi, rather than octopuses; and octopus arms, instead of

octopus legs; and, the class should start on time. As for

classroom management, it was suggested he could direct stud ents

to use one door for entering and the other for exiting his

classroom.

11. At the IAP meeting to discuss the observations, the

minutes reflect pages of observations and concerns , but only a

few minor areas to follow up. Based on the observations,

Resp ondent took steps to organize and clean his classroom, he

accepted the advice concerning use of two doors, and he agreed to

make every effort to start class instruction timely.

12. Cann observed the room on October 4, 2011, for 35

minutes. Sherman observe d the classroom on the next day for 35

minutes during a fifth - grade class with 19 students. Sherman

somehow was able to observe how many students were " off task "

every five minutes while making observations about Respondent ' s

teaching style. Strausser ap parently did not conduct an

observation prior to the next IAP meeting held on October 6,

2011. At that meeting, the identified areas for Respondent to

focus on were using the latest Sunshine State Standards for his

lesson plans, waiting a moment after ask ing a question, cleaning

and organizing his room, and using a level tone of voice with

students.

13. Because the IAP meetings had started to last longer

than the prescribed time, beginning with this meeting, Respondent

asked if he could comment on the obse rvations in writing at the

next meeting. That arrangement seemed to put Respondent at a

disadvantage as compared to others at the meeting, but the IAP

team agreed to the process.

14. Cann observed the classroom again on October 17, 2011,

for 35 minutes ; a nd on October 20, 2011, for 35 minutes. Sherman

observed on October 18, 2011, for 35 minutes , during a third -

grade class with 18 students. Strausser observed on the same day

(in contravention of the IAP guidelines) for one hour. Their

findings, discusse d at the October 18, 2011, meeting included:

Respondent making sarcastic comments to students ; he did not

correctly discipline a child who was whistling ; and his lesson

did not appear to have substance (at least according to Cann).

Sherman again made not e of the number of children off - task at

several different times during her visit. She also measured the

depth of the questions he asked of students, finding them to be

less challenging than she deemed appropriate for their grade

level.

15. At the meeting to " discuss " the findings, which lasted

43 minutes, Respondent again agreed to submit his responses in

writing. He specifically asked for some feedback concerning his

efforts to improve, but Strausser said there had not been any

improvements. In his wri tten response, Respondent explained the

situation concerning the whistling boy; he was sight - impaired and

whistled all the time. He also provided rational responses to

each of the IAP members ' concerns.

16. Sherman next observed on October 21, 2011, for

3 5 minutes during a kindergarten class. She took exception to

Respondent 's giving students a directive, it s not being followed,

and Respondent 's moving forward anyway. Strausser visited on

October 25, 2011, for one full hour. She found that students

were working on a project not set forth in the lesson plan, that

it took Respondent rather long to seat new students, and that

Respondent gave too detailed instructions, not allowing

creativity.

17. At the meeting held on November 1, 2011, to discuss

those f indings, there was little in the way of assistance or

instruction provided to Respondent. He submitted responses to

the observations in writing. He explained, by way of example,

that because he had so many different classes of children, from

kindergarten through fifth grade, he was not as familiar with his

700 students as a regular teacher might be with their smaller

number of students. Thus, he might need to verify students '

attendance by calling a name, rather than recognizing a face.

18. On November 3 , 2011, Sherman observed the classroom for

35 minutes during a fourth - grade class of 20 students. She found

that students were engaged in horseplay around the sink, that

Respondent asked low - level questions, and that some students were

working without wai ting for instruction. Strausser observed on

November 8, 2011, for an undisclosed amount of time. She

questioned whether classroom instructions started promptly and

whether the substance of the lesson was appropriate for the grade

level. Cann ' s observati on was on November 9, 2011, for 35

minutes. He noted the classroom was dark, some students did not

follow directions, and the lesson was too easy.

19. Those observations were discussed at the November 15,

2011, meeting, the seventh of eight planned meetin gs. In the

follow - up portion of the minutes for that meeting, everyone was

simply reminded that the next meeting would be the last one. A

recommendation would be made at the conclusion of the last

meeting. Respondent again submitted written comments and

responses to the findings made by the observers. His responses,

even if self - serving, provided rational reasons for most of the

shortcomings identified by the observers. For example, he

explained that natural light (i.e., no electric light) was

sometime s the most conducive to the art being created by his

students. He also gave examples of how he had reorganized

materials in his classroom per the observers ' suggestions.

20. The last observation by Strausser was on November 16,

2011, at 10:55 a.m., for an indiscernible length of time. She

took exception to the level of challenge for projects being

created by the fifth - grade class. Cann observed on November 21,

2011, for 35 minutes. He, too, questioned the age

appropriateness of the lesson for the day. He also found fault

with the way Respondent handled a child who cried the entire

class period. The last observation by Sherman was on

November 21, 2011, for 35 minutes. She observed two students

using scissors inappropriately, found the class not to be t otally

responsive to directions, and thought the lesson was not

challenging to the students.

21. Those observations were discussed at the last IAP

meeting held on November 30, 2011. The meeting lasted one hour.

Respondent gave his responses orally at tha t meeting, rather than

submit them later in writing. At the conclusion of the meeting,

Respondent and his union representative were asked to leave the

room. The IAP team then discussed the matter and decided to

recommend termination of Respondent ' s emplo yment at the School.

22. Besides the IAP process, the School had other concerns

about Respondent. According to a fellow teacher, Ms. Lee, her

students were messy at times upon returning from art, and they

seemed to like art more under a different teacher. Ms. Cole, a

teacher, said she provided Respondent with help so that he could

deal with ESE students in a more positive fashion. Ms. Taveras,

another teacher, found Respondent ' s lessons to be below the

students ' abilities. She provided him with optional ideas, but

did not think he implemented the ideas well.

23. Respondent is an art teacher and may not be held to the

higher standard of other classroom teachers. However, he has a

formal education and has taught school for over ten years. It is

the opini on and observation of the undersigned that Respondent

has significant shortcomings in the area of written and verbal

communications. His grammar needs improvement and some remedial

training would be beneficial. However, he appears to know how to

teach ar t and does an adequate, though not superior, job. His

evaluations are probably correct; he is " satisfactory, " but not

high - performing.

24. Strausser does not appear to want Respondent at her

school and feels like she had no choice when Respondent was

as signed there. She does not view him favorably, as evidenced by

her comments and observations. It does not seem appropriate that

she was part of a team which is supposed to furnish assistance to

the teacher s in order to retain them at the School. To avoi d the

appearance of impropriety, a different observer would have been

preferable.

25. Much of the criticism of Respondent was fairly devoid

of significant substance. For example, he was negatively

critiqued when he attempted to assist kindergarten studen ts by

suggesting they use the letter " A " for the fish ' s mouth. Cann

opined that the letter " V " would be more appropriate because that

letter did not have a cross mark like the letter " A. " Respondent

explained that younger students are more familiar with " A " than

" V, " so he opted for the more familiar letter. It is difficult

to ascertain how such a concern would be an element of

determining whether to terminate Respondent ' s employment.

Respondent is criticized by one observer for not being in close

proxi mity to all of his students, i.e., moving around the

classroom; another observer chastised him for not staying at the

front of the class so all students could see him. He was told to

be more creative, yet criticized for allowing students to draw

blue pizz a.

26. The most serious concerns expressed by the IAP team had

to do with the level of work given to students and the depth of

questions posed to students. However, the IAP meeting notes do

not reflect much assistance being provided to Respondent in those

areas.

27. There was little, if any, testimony by the IAP team

members as to how they assisted Respondent during the process.

Instead of assistance, there was a heavy concentration of

criticisms, some of them so petty as to be suspect. If the team

was supposed to be helping Respondent improve, as opposed to

highlighting his faults, then the team failed.

28. Respondent is not an excellent teacher, but his

shortcomings were not properly addressed. The IAP team did not

" provide resources and feedback f or improvement in the areas

indicated " to correct his deficiencies.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to a contract with the Lee County S chool

Board. The proceedings are governed by sections 120.57

and 120.569, Florida Statutes.

30. The s uperintendent of s chools for Lee County, Florida,

has the authority to recommend to the School Board that an

employee be suspended or dismissed from emplo yment.

§§ 1012.22(1)(f) & 1012.33(6), Fla. Stat.

31. The burden of proof in this proceeding is on Petitioner

to prove by a preponderance of the evidence that just cause

exists to suspend or terminate the employment of Respondent.

McNeil v. Pinellas Cnt y. Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA

1996); Dileo v. Sch. Bd. of Dade Cnty. , 569 So. 2d 883 (Fla. 3d

DCA 1990).

3 2 . Petitioner has discretion to set standards which

subject an employee to discipline. See Dietz v. Lee Cnty. Sch.

Bd. , 647 So. 2d 217 (F la. 2d DCA 1994). Nonetheless, just cause

for discipline must rationally and logically relate to an

employee ' s conduct in the performance of the employee ' s job

duties and which is concerned with inefficiency, delinquency,

poor leadership, lack of role mod eling, or misconduct. State ex.

rel. Hathaway v. Smith , 35 So. 2d 650 (Fla. 1948); In re:

Grievance of Towle , 665 A. 2d 55 (Vt. 1995).

3 3 . The School Board has construed just cause for purposes

of discipline pursuant to the TALC Agreement in the same mann er

as that phrase is used in section 1012.33, viz :

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education: immorality,

misconduct in office, incompetency, gross

insubordination, willful negl ect of duty, or

being convicted and found guilty of, or

entering a plea of guilty to, regardless of

adjudication of guilt, any crime involving

moral turpitude.

3 4 . Specifically, the Board is alleging that Respondent is

incompetent and, therefore, just ca use exists for termination of

his employment. Despite the fact Respondent is not the best

teacher and has several shortcomings, there is insufficient

evidence that he is incompetent. The IAP process did not

establish just cause for termination of his emp loyment.

3 5. It should also be noted that the IAP process, which was

for the purported purpose of providing Respondent with assistance

so that his deficiencies could be addressed and corrected,

focused almost entirely on identifying every possible problem, no

matter how minute, in Respondent ' s classes. There was no

credible testimony or evidence that Respondent was given helpful

instructions and assistance to correct those deficiencies.

3 6 . Under the " performance probation " (a/k/a IAP) process,

it is the duty of school administration to " provide assistance in

helping correct deficiencies within a prescribed period of time. "

§ 1012.34(4)(b). The School Board failed in that regard.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

L aw, it is RECOMMENDED that a final order be entered by

Petitioner, Lee County School Board, rescinding its termination

of the employment of Respondent, Jerry Zurzolo.

DONE AND ENTERED this 9th day of May , 2012 , in Tallahassee,

Leon County, Florida.

S

R. BRUCE MCKIBBEN

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 wi th the Clerk of the

Division of Administrative Hearings

this 9th day of May , 2012 .

ENDNOTE S

1/ Unless stated otherwise herein, all references to Florida

Statutes will be to the 2011 version.

2/ The director of pe rsonnel advised the principal that the

IAP was not appropriate for a teacher that did not have

u nsatisfactory scores on their evaluation. However, after some

deliberation, the School opted to go forward with the IAP

process.

COPIES FURNISHED:

Gerard Robinson, Commissioner

Department of Ed ucation

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Charles M. Deal, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. Joseph Bu rke, Superintendent

Lee County School Board

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

Robert J. Coleman, Esquire

Coleman and Coleman

Post Office Box 2089

2080 McGregor Boulevard, Suite 202

Fort Myers, Florida 33902

Robert Dodig, Jr., Esqui re

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

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.