12-002017TTS Lee County School Board vs. Elaine Partenheimer Status: Closed Recommended Order on Friday, October 19, 2012.

Summary: Petitioner proved by clear and convincing evidence that just cause exists for termination of Respondent's employment.

Case No. 12-2017TTS

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD, RECOMMENDED ORDER )

)

Petitioner, )

vs. )

)

ELAINE PARTENHEIMER, )

)

Respondent. )

)

)

Pursuant to notice, a final hearing was conducted in this

case on August 20 through 21, 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 District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

For Respondent: Robert J. Coleman, Esquire

Coleman and Coleman

2080 McGregor Boulevard, Suite 202

Post Office Box 2089

Fort Myers, Florida 33902

STATEMENT OF THE ISSUE

The issue in this case is whether just cause exists to

terminate Respondent's employment with Petitioner based on

violations of Florida Administrative Code Rules 6A-5.056(2),

(3), and (5), for incompetence, misconduct in office, and/or

willful neglect of duties, respectively.

PRELIMINARY STATEMENT

On May 14, 2012, the Lee County School Board (the "Board")

issued a Petition for Termination of Employment, alleging just

cause for the termination of Respondent’s employment.

Respondent timely filed a request for a formal administrative

hearing before the Florida Division of Administrative Hearings

(DOAH).

At the final hearing, the Board called the following

witnesses: Ranice Monroe, director of professional standards

and equity for the Board; Craig Baker; Jill Louzao, principal of

principal at Pinewoods Elementary School (“Pinewoods”); and

D.H., T.S., T.B., and A.B, parents of Pinewoods students. The

Board's Exhibits 1 through 17 and 19 through 22 were accepted

into evidence. Respondent testified on her own behalf and

called the following additional witnesses: Barbara Hardee,

curriculum specialist at Pinewoods; and J.M., parent of a

Manatee student. Respondent offered Exhibits 1 through 9 and 11

into evidence, each of which was accepted. (All hearsay

evidence for which no exception was identified was admitted

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

the extent such hearsay evidence was not corroborated or was not

used to supplement 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 Transcript was filed at DOAH

on September 12, 2012. The parties thereafter requested and

were given until October 8, 2012, to file their proposed

recommended orders. Petitioner filed its Proposed Recommended

Order at 3:57 p.m. on October 8; Respondent’s Proposed

Recommended Order arrived at DOAH at 5:04 p.m. on October 8 but

was docketed on October 9 because it arrived four minutes after

normal business hours. Respondent filed a motion asking for

acceptance of its late-filed proposed recommended order with

acquiescence of Petitioner. The motion was granted and both

parties' submissions were given due consideration in the

preparation of this Recommended Order.

FINDINGS OF FACT

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

firing employees at its schools, including Manatee and

Pinewoods. At all times relevant hereto, Respondent was an

employee of the Board.

2. Respondent was hired by the Board on August 22, 2005,

as a second grade teacher at Harns Marsh Elementary. She taught

second grade at that school for three years. At the end of her

third year, Respondent was awarded a professional services

contract. Prior to the beginning of her fourth year at Harns

March, Respondent was told she was being moved to a fifth grade

class for the upcoming school year. Inasmuch as she preferred

teaching second grade, Respondent voluntarily transferred to

Manatee for the 2008-2009 school year, as there was a second

grade position open there. Manatee is a Title I school, serving

a distinct population of students with various emotional or

behavior issues. After teaching second grade at Manatee for one

year, she was moved to a third grade class for the 2009-2010

school year, then back to second grade for the 2010-2011 school

year.

3. The principal at Manatee, Louzao, began to have

concerns about Respondent commencing in the 2009-2010 school

year. The annual evaluation Louzao initially prepared for

Respondent after the 2009-2010 school year had contained less

than satisfactory scores. In the face of a possible grievance

of those scores by Respondent and the teacher’s union, Louzao

upgraded the scores to satisfactory. Louzao was a fairly new

principal, being at that time in only her third year as an

administrator. She did not feel comfortable defending her

negative evaluation against a formal grievance. Louzao also

believed a satisfactory evaluation would encourage Respondent to

improve.

4. As a result of some of her concerns, Louzao ultimately

moved Respondent to third grade for the 2010-2011 school year.

Louzao felt like Respondent might interact better with students

slightly older than the second grade students she had been

teaching. However, some of the third grade students’ parents

complained to Louzao about Respondent, resulting in some

students being transferred out of Respondent’s class to another

third grade class. It was not Louzao’s normal policy to

transfer students; she would prefer that the teacher and

students work through their issues. In this case, however,

Louzao felt like removal of the students would be most

beneficial as Respondent continued to work with the school

guidance counselor dealing with her classroom demeanor. The

teacher-student relationship was never fully corrected to

Louzao’s satisfaction. For example, the first student was

transferred out of Respondent’s class in August, then another in

October, and yet another in November 2010.

5. Louzao met or talked with Respondent daily and had her

assistant principal counsel Respondent in an effort to improve

Respondent’s teaching skills. At the end of the 2010-2011

school year, Louzao gave Respondent another evaluation with

generally satisfactory scores, but listed several “areas of

concern,” i.e., areas that needed additional work. Louzao would

have given Respondent less than satisfactory marks, but she had

failed to adequately document Respondent’s shortcomings during

the school year, a requirement for unsatisfactory evaluations.

6. Louzao then attempted to deal with Respondent’s

inability to properly interact with her students by moving

Respondent to a fifth grade class for the 2011-2012 school

year. 1/ Louzao believed that Respondent’s sarcasm and coarse

demeanor would be more well-received by older students. Almost

immediately, however, parents began to make complaints about

Respondent. Louzao was contacted by parents who reported that

staff questioned a number of students and received verification

from those students that the remarks had been made. Based upon

that verification – although it was not absolute proof that the

comments were made – Louzao contacted the Board’s professional

standards office to begin further investigation into the

allegations. It was also reported that Respondent was refusing

to allow children to use the bathroom when needed. Again, while

Respondent admitted to having a fairly strict bathroom policy,

there is no proof that children were actually denied bathroom

privileges. The school, nonetheless, found sufficient student

verification of the allegation to make it a point of discussion

with Respondent.

7. Then, in September 2011, an incident occurred which led

to an investigation of Respondent by the Department of Children

and Families. The incident involved discipline in a school

stairwell. The security videos from a stairwell near

Respondent’s classroom showed students walking and running up

and down the interior, non-air conditioned stairwell numerous

times for approximately 20 minutes without water or rest. There

is no dispute about what the videotapes show; Respondent admits

that she had the students doing “training” to prevent them from

ascending and descending the stairs improperly. Several parents

complained to the school about the staircase discipline

incident.

8. Respondent described the matter as follows: She had

been having a lot of trouble with this particular class; they

were very disrespectful. The students would misbehave when they

were moving from the classroom to other areas of the school.

Particularly, the students would run up and down the stairs. To

change that behavior, Respondent decided to teach the students

how to walk up and down the stairs. To that end, she had the

students walk up and down the stairs over and over until they

did it properly. The videotape accurately reflected that it

took some students more attempts to stop running and that some

students never did stop running. The activity was not,

according to Respondent, punishment; rather, it was a teaching

moment. She had seen a student injured at a prior school

because of running down the stairs, and Respondent did not want

that to happen again. Respondent said she just lost track of

how much time the students were on the staircase. To

administration, however, it looked like Respondent was

disciplining the students in an extremely harsh fashion. The

Board does not condone such actions by its employees.

9. After the staircase discipline matter, Respondent was

suspended with pay. A pre-determination hearing was held, but

Respondent said the staircase incident was not mentioned.

Rather, she was questioned about various allegations that had

been made by students and their parents. The allegations

included: Calling a student a “retard;” saying someone was

stupid; not allowing students adequate bathroom breaks; making

fun of a student’s name; and yelling at students. Upon

completion of the pre-determination meeting, Respondent was

suspended with pay and sent home. She was later assigned to an

office job so that she could be of some benefit to the Board

during her suspension. The investigation concluded with the

issuance of a Letter of Reprimand to Respondent, who was also

required to attend a class on classroom management and a Code of

Ethics training session. She was not allowed to return to the

classroom at that time.

10. In January 2012, at the beginning of the second

semester of the 2011-2012 school year, a second grade teaching

position came open at Pinewoods. The Board’s Professional

Standards office called Dr. Carlin and told her the Board wished

to have Respondent fill the position. Dr. Carlin agreed to the

assignment. Dr. Carlin did not speak to Louzao about Respondent

and did not know of Respondent’s prior issues at Manatee.

Respondent’s testimony that Dr. Carlin stated she was aware of

“everything that happened at Manatee” is not credible.

11. Respondent first went to Pinewoods on or about

January 19, 2012. She was introduced to the school and to her

classroom by Dr. Carlin. Dr. Carlin attempted to prepare

Respondent and to provide all the support and assistance she

could to insure Respondent’s success. One of the items of

support provided by Dr. Carlin, was a website containing the

school handbook which sets out all of Pinewood’s policies for

teachers and other staff members.

12. Respondent remembers meeting Dr. Carlin on a Thursday

and being told she would start co-teaching the class with the

out-going teacher the following Monday, January 23, 2012. It

was Respondent’s understanding that she would then begin

teaching on her own the following Friday, January 27, 2012.

(Respondent said her understanding was based on an email she

received from the Professional Standards office informing her

about the new assignment. However, the email was not produced

as an exhibit in this case.) In fact, Respondent was introduced

to the class on Friday January 20, 2012, the out-going teacher’s

last day. She took over the class the following Monday,

January 23, 2012, on her own. Dr. Carlin remembers spending a

fair amount of time with Respondent on Respondent’s first day

before introducing her to the class.

13. Respondent’s first day with the students in her new

class was atypical; it was a field day of sorts at the school,

so the students were out of the class more than they were in.

At the beginning of the class period, however, Respondent

noticed that the children were socializing and talking for the

first few minutes after arrival. Respondent asked the out-going

teacher if she always allowed the children to do that, and was

told she did. That was a different approach than the one

normally taken by Respondent. She had hard-fast rules about

what students should do upon entering the classroom, e.g., turn

in their homework, bring their homework notebook to the

teacher’s desk, sharpen their pencils, use the bathroom, and

then do advanced reading or use the computer until regular

instruction began. Respondent’s approach was much more strict

and instruction-oriented than the prior teacher’s.

14. Within two or three days of Respondent assuming her

new teaching position, some of the students’ parents began

calling the school with complaints. The initial complaint was

that Respondent was assigning weekend homework in violation of

the school’s policies. When Respondent became aware of the

policy, she ceased that practice. Dr. Carlin believes

Respondent should have known the policy after reading her school

handbook, but the book was over 50 pages long and contained a

lot of information. Thus, Respondent’s temporary violation of

that policy is excusable.

15. More troubling, however, were the complaints

concerning Respondent’s alleged verbal abuse of students and her

rude demeanor. Parents who visited Respondent’s classroom found

her to be aloof, stand-offish, and she seemed not to be engaged

with the students. It was reported again that Respondent was

refusing to allow students to use the bathroom as needed. There

is no competent evidence to support the allegation, but it is

troubling that the same complaint that had been made by parents

at Manatee was being made by parents at Pinewoods. The Board’s

director of professional standards received “weekly, if not

daily,” calls from parents and administration complaining about

Respondent almost from the day she started her employment at

Pinewoods.

16. Dr. Carlin visited Respondent’s classroom on several

occasions to see for herself whether there were any “teaching”

issues that needed attention. Dr. Carlin met with Respondent on

February 1, 2012, just one week after Respondent started

teaching at Pinewoods. The purpose of the meeting was to

discuss the parents’ complaints and to provide suggestions for

doing better in the classroom. Respondent was not told at that

time that she was being formally reprimanded.

17. A letter dated February 6, 2012, memorialized the

February 1, 2012, meeting and constituted a written reprimand

for Respondent’s behaviors in the classroom. Despite the prior

meeting, Respondent was surprised by the written reprimand. The

letter set out six categories of problems that had been

identified by Dr. Carlin from letters and conversations with a

number of parents:

1) Lack of respect shown to students and

parents, e.g., rolling her eyes and speaking

in disrespectful tones;

2) Classroom not warm and supportive.

Refusing to help children and making them

cry;

3) Refusing to allow children restroom

privileges when needed;

4) Moving through the curriculum too fast;

5) Giving excessive homework; and

6) Causing children to cry and become

distressed about coming to school.

18. Respondent denied each of the allegations and

expressed surprise about the parents’ complaints. She also said

that part of the blame for any problems lay with the students;

they were not respectful to her and had no rules of conduct. 2/

Dr. Carlin knew, however, that the prior teacher had rules for

her classroom and the children were well-behaved. Respondent

signed the letter, acknowledging receipt.

19. The letter then set forth some guidelines or action

plans that were to be implemented immediately by Respondent. In

response to the first item, prohibiting Respondent from yelling

at students or speaking in a disrespectful tone, Respondent

seemed to go to the other extreme. She became very quiet and

almost apathetic in her relationship with the students.

Respondent did meet expectations in the other items, at least to

some degree, though Dr. Carlin was not totally satisfied with

all Respondent’s actions.

20. Finally, the letter provided four distinct suggestions

for improving her conduct and teaching habits, including:

1) Use of the Peace Education materials in

her classroom, including I-Care Rules.

Respondent was to meet with Mrs. Cutting and

Ms. Roberts for assistance with implementing

the materials.

2) Use of the Board’s academic plans for

subject areas. Respondent was to meet with

Mrs. Cutting and Mrs. Hardee to receive

coaching and modeling with regards to the

materials.

3) Initiation of a classroom plan outlining

her expectations for students.

4) Following all directives in “this

letter.”

21. In response to the four suggestions, Respondent:

1) Met with Mrs. Cutting and Ms. Roberts

about the Peace Education materials.

However, Respondent did not demonstrate

implementation of the materials in her

classroom.

2) Respondent met with Mrs. Cutting and

Mrs. Hardee about use of the Board’s

academic plans. However, she did not

utilize the plans on a regular basis.

3) Respondent did initiate a classroom plan

outlining her expectations for students.

Dr. Carlin described the plan as inferior

and had to re-write it (with assistance from

her staff). Respondent considered her plan

to be adequate in all regards, even prior to

editing by Dr. Carlin.

4) The fourth guideline was somewhat

nebulous, so it is difficult to ascertain

whether Respondent complied with the

directive.

22. After the letter was issued, Dr. Carlin waited for a

week to give Respondent an opportunity to incorporate the

guidelines and suggestions. She then conducted three formal

observations of Respondent’s classroom to determine whether the

guidelines and suggestions were being followed. She prepared

written synopses of her observations. The assistant principal,

Ms. DeMarchena, also did an observation that was codified in

written notes. The gist of the observations by administrative

staff was that Respondent was unresponsive to students, uncaring

in her demeanor, lethargic in her efforts to teach, and somewhat

rude. Dr. Carlin described Respondent as “the worst teacher I

have ever seen in my career.” Dr. Carlin noticed a totally

lethargic demeanor by Respondent after the February 1, 2012,

meeting and February 6, 2012, written reprimand. Respondent

seemed to just stop caring about her job. Dr. Carlin said of

believe my eyes.”

23. There were 18 students in Respondent’s classroom at

Pinewoods. Eight of their parents made formal complaints to

Dr. Carlin about Respondent’s classroom demeanor or teaching

skills. Three of those parents testified at final hearing and

expressed overall dissatisfaction with Respondent’s teaching

abilities. The parents observed that their children did well at

school prior to Respondent’s arrival, then did well after

Respondent’s departure. While Respondent was teaching, however,

their children were unhappy, unmotivated, and emotionally

distressed. Two of the parents had teaching experience and

measured Respondent both professionally and from their

perspective as parents. These parents also discussed

Respondent’s behavior and teaching abilities with many of the

other parents from the class.

24. The parents’ complaints included the following:

Respondent ignored two parents when they came into the

classroom, a response the parents had not experienced from any

other teacher. Respondent did not engage her students in the

celebration of a holiday (Valentine’s Day), even upon

intervention by a parent who brought treats for the students.

Respondent’s classroom was messy and disorganized. Students who

had previously enjoyed school were now reluctant to attend

Respondent’s class. Students feared Respondent and were afraid

to complain about her strictly enforced policies, e.g., bathroom

and pencil sharpening limitations. One parent reported that her

child prayed each night that Respondent would be nice to the

class.

25. Pinewood’s curriculum specialist, Ms. Hardee, was

asked by Dr. Carlin to observe Respondent in the classroom and

to provide assistance as needed. Ms. Hardee intervened to

assist Respondent to gain access to the web-based accelerated

reading materials when Respondent initially experienced

problems. She also helped Respondent understand the homework

policy and other school policies. When observing Respondent’s

classroom, Ms. Hardee found that not all students were actively

engaged.

26. Ms. Hardee also substituted for Respondent on one

occasion and could not find a lesson plan for that day.

Respondent said the lesson plan was right in the middle of her

desk and does not know why Ms. Hardee could not find it. Many

of the parents, as well as administrators, reported that

Respondent’s classroom was extremely messy and disorganized. It

is, therefore, understandable that Ms. Hardee would not find the

lesson plan. Hardee, who was called by Respondent as a witness,

provided extremely credible testimony. During her review of

classroom and the students were not engaged during instruction

time. Hardee described Respondent’s style as “flat, without

expression or enthusiasm.”

27. One parent of a student at Manatee, the prior school

at which Respondent had taught, testified on Respondent’s

behalf. She praised Respondent’s teaching and said Respondent

did a good job with her child. Of the several parents’

testimony, the Manatee parent’s was the least persuasive.

28. On February 22, 2012, Dr. Carlin met with Respondent

and addressed the many concerns raised by parents and the

observations made by herself and her staff. Respondent and

Dr. Carlin discussed all the problem areas and Dr. Carlin told

Respondent unequivocally that failure to correct the problems

would result in sanctions, up to and including termination of

employment. It was Dr. Carlin’s intention to place Respondent

on a very short leash, intending to act quickly if things did

not drastically improve.

29. However, that very evening Dr. Carlin received three

additional letters from upset parents complaining about “very

disturbing” incidents in Respondent’s classroom. Dr. Carlin

contacted the Professional Standards office and the Board’s

attorney the next day. In consultation with those people,

Dr. Carlin decided that, notwithstanding, her representations to

Respondent the day before, she must remove Respondent from the

classroom before irreparable harm was done to the students. She

then notified Respondent – on February 23, 2012 – that she was

being suspended with pay pending further review.

30. The entire situation concerning Respondent’s classroom

demeanor and actions was then reviewed by the Professional

Standards office. That office determined that just cause

existed to terminate Respondent’s employment. Dr. Carlin

concurred with the decision. By letter dated April 20, 2012,

Respondent was notified that a recommendation for termination of

employment would be made to the Board at its next meeting. The

letter also notified Respondent that she was suspended without

pay effective April 23, 2012.

31. Respondent rejects all of the complaints against her

as being without basis or truth. She says the “staircase

discipline” issue was just a misunderstanding; she simply lost

track of how much time she made the children walk up and down

the stairs. She did not, however, grieve the reprimand issued

for that incident. Respondent says the children simply

misunderstood her bathroom policy; it was correct and

appropriate. The parents’ comments about her were, she said,

derived from their children’s mistaken perception of her

demeanor and attitude. And, even though Respondent acquiesced

and took a behavior management class and a class on teacher’s

code of ethics, she did not believe she needed them or that they

taught her anything. Respondent’s testimony lacked credibility

and was not persuasive.

32. The most credible and persuasive evidence presented in

this case indicates that Respondent does not recognize how she

comes across to students and their parents. Respondent’s

demeanor and teaching style, while it may be comfortable to her,

is not consistent with good teaching practices. She is dour,

lethargic, unfriendly, scary to her students, and defensive.

Because she does not understand her own shortcomings, Respondent

has become incompetent and has willfully neglected her duties as

a teacher.

CONCLUSIONS OF LAW

33. 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 School

Board. The proceedings are governed by sections 120.57

and 120.569, Florida Statutes (2012). 3/

34. The Superintendent has the authority to recommend to

the Board, and the Board may take action pursuant to the

recommendation to dismiss an instructional employee from

Stat.

35. The burden of proof in this proceeding is on the Board

to prove, by a preponderance of the evidence, just cause exists

to suspend or terminate the employment of Respondent. McNeil v.

Pinellas Cnty. 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). The burden in this case is contrary to other penal cases

in which actions must be proven by clear and convincing evidence

( see, e.g. , Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987)),

but is the accepted standard of proof in school board cases at

this time.

36. In the absence of a rule or written policy defining

just cause, school boards have historically had discretion to

set standards which subject an employee to discipline. See

Dietz v. Lee Cnty. Sch. Bd. , 647 So. 2d 217 (Fla. 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

modeling, or misconduct. State ex rel. Hathaway v. Smith , 35

So. 2d 650 (Fla. 1948).

37. The 1999 Florida Legislature amended

section 231.36(1)(a), Florida Statutes, (the former statute

governing public education in Florida) five years after the

Dietz case was entered. The amendment removed school boards’

“absolute discretion” to define just cause for purposes of

dismissing instructional staff. Instead, the State Board of

Education was given the authority to define by rule what

constitutes just cause. After the creation of the Florida K-20

Education Code (the “Code”) in 2002, the provisions of former

section 231.36(1)(a) were transferred to the Code, and are now

found in sections 1012.33(1)(a) and (4)(c).

38. The rule created by the State Board of Education is

now codified as Florida Administrative Code Rule 6A-5.056. As

of the time of the alleged violations in this case, the rule

(enumerated 6B-4.009 at that time) read, in pertinent part, as

follows:

The basis for charges upon which dismissal

action against instructional staff may be

pursued are set forth in section 231.36,

F.S. The basis for each of such charges is

hereby defined:

(1) Incompetency is defined 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

and individual case may be made on the basis

of testimony by members of a panel 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) repeated failure to

perform duties prescribed by law (section

231.09, F.S.); (2) repeated failure on the

part of a teacher to communicate with an

relate to children in the classroom, to such

an extent that pupils are deprived of

minimum education 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.

* * *

(3) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B-

1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B-

1.006, F.A.C., which is so serious as to

impair the individual’s effectiveness in the

school system.

(4) Gross insubordination or willful neglect

of duties is defined as a constant or

continuing intentional refusal to obey a

direct order, reasonable in nature, given

with proper authority.

* * *

39. The evidence supports Respondent’s contention that her

students were doing no worse and no better than students in the

other classes at Pinewoods as far as test scores were concerned.

However, she was only teaching the class for a relatively short

period of time. The students’ test scores would not be a viable

means of measuring Respondent’s competency.

40. According to the administrators and other specialists

who witnessed Respondent’s teaching methods in the classroom,

Respondent was not demonstrating competence in her regular

teaching practices. Not all of her students were fully engaged

with the lessons and many seemed genuinely unhappy with their

school experience. The parents who visited Respondent’s

classroom did not find Respondent to be properly or adequately

relating to their children. The classroom itself was disheveled

and did not promote learning by the students.

41. The credible testimony of Respondent’s supervisors and

administrators established, by a preponderance of evidence, that

Respondent’s classroom teaching skills were far below the

standard expected for educators at Pinewoods.

42. Respondent was only in her position at Pinewoods for

one month, so it cannot be ascertained whether her teaching

style would have resulted in the children actually learning

their lessons and testing appropriately. However, the level of

complaints issued by parents, coupled with the administrators’

eye witness evaluations, was sufficient to substantiate

incompetence and neglect of duties for the time she was

employed. While it may be that Respondent could have changed

with the passage of more time in the classroom, there is no

requirement that the Board allow an incompetent teacher who is

willfully neglecting her duties to have more time.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by

Petitioner, Lee County School Board, upholding the termination

of Respondent, Elaine Partenheimer's, employment for the reasons

set forth above.

DONE AND ENTERED this 19th day of October, 2012, in

Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of October, 2012.

ENDNOTES

1/ Unlike when she had been assigned to fifth grade at Harns

Marsh and opted to transfer to another school, this time

Respondent accepted the assignment.

2/ This was the same allegation Respondent made about the

Manatee students in her class.

3/ Unless specifically stated otherwise herein, all references

to Florida Statutes shall be to the 2012 version.

COPIES FURNISHED :

Robert J. Coleman, Esquire

Coleman and Coleman

2080 McGregor Boulevard, Suite 202

Post Office Box 2089

Fort Myers, Florida 33902

Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

Dr. Joseph Burke, Superintendent

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

Lois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Pam Stewart, Interim Commissioner

Department of Education

Turlington Building, Suite 1514

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.