17-001827TTS Miami-Dade County School Board vs. Rodolfo Leal Status: Closed Recommended Order on Thursday, March 15, 2018.

Summary: Petitioner's conduct in the classroom and his failure to meet evaluation standards constitute misconduct in office, therefore providing just cause for dismissal from employment by the school board.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 17 - 1827TTS

RODOLFO LEAL,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings (ÐDOAHÑ), on October 2 3 and 2 4 , 201 7 , in

Miami , Florida.

APPEARANCES

For Petitioner: Christopher J. La Piano, Esquire

Miami - Dade County School Board

Suite 430

1450 Northeast Seco nd Avenue

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

2 9605 U.S. Highway 19 North

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

The issue to be determined is whether Petitioner has

sufficient grounds to support dismissal of Respondent from

employment.

PRELIMINARY STATEMENT

On March 15, 20 17, Petitioner, Miami - Dade County School

Board (ÐSchool BoardÑ), took action to suspend without pay and

initiate dismissal proceedings against Respondent, Rodolfo Leal.

Respondent timely requested a hearing pursuant to sections

120.569 and 120.57(1), Flor ida Statutes (2017) , and the matter

was referred to DOAH and assigned to the undersigned to conduct

the hearing.

At the final hearing, the School Board presented the

testimony of six witnesses: Luis A. Bello , principal, Aventura

Waterways K - 8 Center ; Ilea na Rob le s , assistant principal,

Aventura Waterways K - 8 Center ; Kevin N. Williams, principal ,

Norwood Elementary School ; Lakesha Wilson - Rochelle , principal,

Scott Lake Elementary School; Thomas Fisher , administrative

director ; and Dr. Aleksandr Shneyderman , director , expert witness

in calculation of the Value Added Model (Ð VAM Ñ) . Petitioner

offered Exhibits 1 through 32 , which were admitted into evidence.

Respondent testified on his own behalf and offered RespondentÓs

Exhibits 1 through 10 2 , which were adm itted into evidence.

A four - volume Transcript of the final hearing was filed on

December 18 , 201 7 . T he parties requested, and were granted, two

extensions of time to file their proposed recommended orders .

The deadline was extended until January 19, 20 18. Petitioner was

unable to complete and file its Proposed Recommended Order by the

deadline and on January 22, 2018, filed PetitionerÓs Motion to

Accept Proposed Recommended Order as Timely , which was unopposed .

The motion was granted, and b oth filings have been carefully

considered in the preparation o f this Recommended Order .

References to statutes are to Florida Statutes (201 7 ),

unless otherwise noted.

FINDING S OF FACT

1. At all times material hereto, Petitioner was a duly -

constituted School Board c harged with the duty to operate,

control , and supervise all free public schools within the S chool

D istrict of Miami - Dade County, Florida (ÐSchool DistrictÑ) ,

pursuant to Article IX , section 4(b) of the Florida Constitution ,

a nd section 1012.23, Fl orida Sta t utes .

2. At all times material hereto, Respondent was employed as

an elementary school teacher by the School Board and currently

holds a professional services contract. He began working for the

S chool D istrict on or about March 2007, in the middle of th e

2006 - 2007 school year. His first assignment was at Holmes

Elementary School where he worked on a Ðwaiver , Ñ since he did not

have an elementary education certification. The principal asked

him to get his certification in elementary education, which he

d id. According to Respondent, he was asked to start working

early because the principal did not have enough teachers. During

that year, he was evaluated as meeting standards in all areas of

evaluation and was rehired for the 2007 - 2008 school year.

3. Pr ior to becoming a teacher in Miami - Dade County,

Respondent served in the United States military from 1978 - 1985,

and had worked as a r egistered n urse. He holds an associate Ós

degree from Miami - Dade College, a bachelorÓs degree from Florida

International Un iversity (ÐFIUÑ), two masterÓs degrees from FIU ,

an academic certificate in gerontological studies from FIU, and

an academic teaching certificate from FIU.

4. For the 2007 - 2008 s chool y ear , Respondent worked at

L ittle River Elementary School (ÐLittle Rive rÑ). The principal

at Little River asked Respondent to work on another Ðwaiver , Ñ

this time for teaching English as a Second Language students

(ÐESOLÑ). After completing the necessary coursework, Respondent

received an ESOL certification.

5. Respondent r emained at Little River through the

2008 - 2009 school year until he was involuntarily transferred to

Scott Lake Elementary School (ÐScott LakeÑ) for the 2009 - 2010

school year. During the latter two years at Little River, he was

evaluated as meeting standa rds in all areas. According to

Respondent, he was transferred to Scott L ake because the

administration of Little River objected to the number of student

discipline referrals (ÐSCMsÑ) he was writing on students.

6. Respondent reports having written somewh ere between 600

and 700 SCMs on students over the years. Respondent freely

admits he wrote many SCMs at every school he worked at and

highlight s that fact as an excuse for why he performed poorly.

7. During RespondentÓs first three years of employment at

Holmes Elementary and Little River, he was evaluated across the

board on his annual evaluations as ÐMeets Standards.Ñ During

this period of time, the only other rating an employee could

receive was ÐDoes Not Meet Standards.Ñ

8. During the 2009 - 2010 scho ol year, RespondentÓs p rincipal

for his first year at Scott Lake was Valerie Ward.

9. During the 2009 - 2010 school year , the School District

made changes to the teacher performance evaluation system. Use

of the Instructional Performance Evaluation and Gro wth Sys tem

(ÐIPEGSÑ) was implemented. The IPEGS Summative Performance

Evaluations (ÐSPEsÑ) were now comprised of eight Performance

Standards, where a teacher could be rated ÐExemplary, Ñ

Ð Proficient, Ñ Ð Developing/Needs Improvement , Ñ or

ÐUnsatisfactory.Ñ I n her first year with Respondent, Ms. Ward

rated him ÐProficientÑ in all eight standards.

10. At the end of the 2009 - 2010 school year , Ms. Ward

placed Respondent on a 90 - day performance probation pursuant to

section 1012.34. During this 90 - day probation process , he was

observed by administration on at least five different occasions ,

was put on several improvement plans , and had several meetings

with administrators. The 90 - day probation process is very time -

consuming for both the subject employee and the employeeÓs

administration. In other words, it is not the preferred task of

a busy principal, unless he or she must , and then only when it is

warranted by poor performance.

11. Respondent believes Ms. Ward placed him on performance

probation to retaliate against him because he complained about

the temperature in his classroom. This is the first of many

excuses and justifications Respondent has offered to explain

criticisms of his performance by administrators.

12. For the 2010 - 2011 school year at Scott L ake, Respondent

was again evaluated as proficient in all areas.

1 3 . On or about April 2012, Principal Lakesha Wilson -

Rochelle assumed Ms. WardÓs role at Scott Lake. Principal

Rochelle signed off on RespondentÓs summative evaluation during

the 2011 - 2012 s chool year, but did not fill it out , since it had

already been completed by someone else. The score placed

Respondent in the Ðneeds improvementÑ category. She signed it

only because she was required to do so , and the summative

evaluation rating she gave him for the next school year was even

worse by several points .

14 . It was also during the 2011 - 2012 school year that IPEGS

underwent another change. Now there were seven professional

practice standards on which teachers were evaluated and one

standard th at was based on actual student data .

Use of IPEGS

15 . IPEGS was approved by the Florida Department of

Education (ÐFDOEÑ) for all years relevant to this case.

16 . T he IPEGS processes from the 2013 - 2014 school year

forward consisted of the following: Each teacher that had been

teaching for more than two years received one formal observation.

If during that observation the teacherÓs performance was

sufficient, nothing more need be done, outside of a summative

evaluation at the end of the year. However , inf ormal feedback is

given to teachers throughout the year after classroom

walkthroughs and through other means.

17 . If a teacher was observed to be deficient in one or

more standards during the formal observation, the teacher and

administration would engage in something called Ð support

dialogue Ñ in which support in various forms is provided to the

teacher , so that the deficiencies can be remediated. If the

teacher still exhibits performance deficiencies after the support

dialogue, they are placed on the 90 - day performance probation.

While on performance probation, the teacher is observed another

four times after the initial observation. After the second,

third and fourth observations, if the teacher has not remediated,

the administration develops an improv ement plan , which must be

followed. The improvement plan gives the teacher assignments and

assistance to aid him or her in remediating any deficiencies.

18 . Also, each teacher, regardless of whether placed on

performance probation, receives a n SPE , as we ll as a Summative

Performance Evaluation Rating (ÐSPE RatingÑ) of either ÐHighly

Effective , Ñ ÐEffective , Ñ ÐDeveloping/Needs Improvement , Ñ or

ÐUnsatisfactory.Ñ

19 . In addition to the seven professional practice

standards, a data component is also factored into the SPE Rating

known as the VAM.

The VAM

20 . As explained by Director of Research Services

Dr. Aleksander Shneyderman (ÐDr. SÑ), the VAM is a statistical

model that attempts to measure a teacherÓs impact on student

learning growth through the use of a multi - level lineal

regression.

21 . Dr. S has been working with the VAM , since its

inception in 2010 - 2011. He has studied it and keeps abreast of

FloridaÓs rules and regulations of how to calculate it. Dr. S

and his office calculate what is called Ð Loc al VAM Ñ for the

School District. He also provides trainings to School District

employees on the use of the VAM. Dr. S was tendered and accepted

in this proceeding as an expert in VAM calculation.

22 . Local VAM is usually calculated in September/October by

his office after the previous yearÓs testing data become

available. Various assessments are used to create the L ocal VAM.

It is calculated in compliance with state statutes , and the

methodology is approved each year by FDOE . Also, the methods for

cal culating the L ocal VAM are bargained for and ratified by the

United Teachers of Dade (ÐUTDÑ) teacherÓs union.

23 . The Florida VAM is calculated by the State using a

model that is approved by the Florida Commissioner of Education.

The results of the Flori da VAM are given to Dr. SÓs office by the

State. The Florida VAM is created using the Florida Standards

Assessment (ÐFSAÑ).

24 . In the 2013 - 2014 and 2014 - 2015 school years ,

RespondentÓs L ocal VAM scores were calculated by Dr. SÓs office

and based upon hi s studentsÓ results on the Stanford 8

Achievement Test, 10th edition . UTD approved the methodology in

VAM calculation for both of these years.

25 . For the 2015 - 2016 school year, RespondentÓs VAM score

was the Florida VAM in English language arts for fift h grade.

26 . The goal of the VAM is to measure a teacherÓs

effect iveness on student learning growth. In order to do this as

accurately as possible, students are compared to similar students

for an Ðapples to applesÑ comparison. Only students with the

sa me demographic characteristics , as well as the same prior

yearÓs test scores are compared to one another. The demographic

factors considered are English Language Le a rner (ÐELLÑ) status,

gifted status, disability status, relative age (which considers

wheth er a child was retained in a previous grade) , and attendance

(which was added in 2014 - 2015). Student demographics and the

prior yearÓs test scores must be exactly the same.

27 . Based on these demographics and past scores, an

expected score is created for each student. If the student

exceeds that score, the credit for that success is given to the

teacher.

28 . The School Board and Dr. S concede that the VAM does

not account for every possible student performance variable,

because , simply put, this would b e impossible , since there are a

limitless number of factors that could be considered. Moreover ,

certain factors are forbidden to be used by the L egislature ,

including socioeconomic status, race, gender , and ethnicity.

( See § 1012.34 , Fla. Stat. ). Respon dent argue s that because not

every imaginable factor that might affect a studentÓs grade is

captured, that the VAM is not useful. Respondent claim s that

factors beyond the teacher might be causing poor performance, for

example: lack of parental engagemen t. While levels of parental

engagement could impact student performance, the School Board

states that it is following state statutes to the letter and

doing the best it can within the applicable statutory framework.

Moreover, just as factors outside of c onsideration might hurt

student performance, other factors might enhance performance , and

the teachers receive those possible benefits as well -- for

example , if parental engagement is good. Those benefits would

flow to the teacher, despite not having earne d them through his

or her personal efforts .

29 . Moreover, the VAM score ranges that are used to

classify teachers are bargained for with UTD. The ranges have

confidence intervals developed th r ough the application of margin

of error calculations that miti gate uncertainty to protect and

ÐsafeguardÑ teachers from unfair classifications. In many

instances these safeguards giv e the teachers the benefit of the

doubt to make sure they do not fall into the lowest category ,

which is Ðunsatisfactory . Ñ Noticeably absent from these

bargained for ÐsafeguardsÑ is any mention of how much

instructional time a teacher must have with a class before those

studentsÓ data can be used to calculate a teacherÓs VAM score.

UTD has not bargained for any special rules designating when

teacher s can and cannot be held accountable for their classÓ data

based on the time they have instructed that class. As such, the

only relevant inquiry is whether those students are with that

teacher during the FTE period in February. Also, the law ( s ee

§ 1012.34, Fla . Stat . ) make s no mention of any minimum length of

instructional time necessary to hold a teacher accountable for

his or her stu dents.

The 2013 - 2014 School Year at Scott Lake

a) Refusal to teach basic Spanish

30 . In May 2013, near the end of the 2012 - 2013 school year,

Principal Rochelle advised Respondent that he would be teaching a

kindergarten class for the 2013 - 2014 school year and that he

would be required to teach them one hour of introductory Spanish.

In an email to Principal Ro chelle, Respondent asserted that he

believed he was being assigned to teach Spanish to the

kindergarteners in retaliation for his extensive reporting of

student SCMs. In that same email , he advised her that he did not

want to teach Spanish.

31 . Prior to being advised of this assignment, the School

District conducted a language proficiency assessment for

Respondent with both a written and verbal component , which he

passed. Principal Rochelle had personally seen Respondent speak

fluent Spanish to her schoo l secretary and the art teacher.

Because Respondent spoke fluent Spanish, or , at least,

ÐconversationalÑ Spanish (as admitted by RespondentÓs counsel in

his opening) , she gave him the assignment.

32 . Moreover, as a p rincipal , she had the right to assign

Respondent as she saw fit. School Board Policy 3130 -

Assignments reinforces this assertion stating , in relevant part,

ÐInstructional staff members may be reassigned to any position

for which they are qualified in order to meet needs of the

District and p ursuant to the collective bargaining agreement.Ñ

In order to teach the one - hour basic Spanish component of the

class, Respondent did not need to be certified to teach Spanish.

He only needed an elementary education certification, which he

had. He even a ttended a training class on the implementation of

the Spanish program.

33 . Respondent admits he can speak Spanish, write basic

Spanish, has taken Spanish classes and passed the School

DistrictÓs proficiency exam. Curiously, he objected to them

giving the proficiency exam to him based on the grounds he was

Ðsingled outÑ for having a Hispanic last name, having been

overheard speaking the language , and because he is not from a

Spanish - speaking country. These are not reasonable objections

when the School Dis tric t explained the objective reasons listed

above regarding RespondentÓs qualifications to provide the basic -

level Spanish instruction. Respondent persisted in his belief

that he is Ðnot qualifiedÑ to teach kindergarten Spanish despite

all the evidence t o the contrary .

34 . Respondent simply refus ed to do something that he was

entirely capable of doing and that was within his ambit of

responsibilities. He described one of the lessons he was

allegedly incapable of teaching as follows, ÐYou put a CD in the

player. The kids sing songs in Spanish. The kids cut out

pictures of objects and match them to a picture with the word in

Spanish.Ñ The kindergartners in his class did not speak Spanish ;

they spoke English. The Spanish component of the class was very

basic and involved things like vowels, colors, puppets, basic

books , and vocabulary words. Contrary to RespondentÓs

assertions, no complex grammar or sentence structure was

involved. Such things are not even part of ordinary English

kindergarten instruct ion , as admitted by Respondent. Moreover ,

he was provided with materials from which to draw the

instruction. Principal Rochelle does not speak Spanish herself,

yet believes she could teach the Spanish component , as it is a

Ðpiece of cake.Ñ

35 . Responden t filed a grievance regarding the Spanish

assignment. In order to appease and accommodate Respondent,

Principal Rochelle eventually sent a Spanish teacher to his room

to teach the Spanish component. However, Respondent then

complained that the grades she was entering still had h is name

attached to them in the computerized grading system. Finally,

the principal decided to move him to a first - grad e class in early

November 2013. Undoubtedly , the requests of Respondent led to

this assignment change.

b) Fo rmal IPEGS observation

36 . On March 11, 2014, Principal Rochelle performed her

formal observation of Respondent pursuant to IPEGS. On that day,

no performance deficiencies were noted. However, throughout the

year , Principal Rochelle had conducted many i nformal observations

and walkthroughs of his classroom and had already provided him

feedback regarding his performance and her expectations.

Examples of that feedback can be found in an August 27, 2013 ,

email from Principal Rochelle to Respondent. Moreov er, according

to Principal Rochelle , teachers tend to be on their best behavior

during these observations Î - which makes sense, because they know

the boss /evaluator is watching. The formal observation is also

only a snapshot in time of the teacherÓs perform ance on a

particular lesson ; it is not a reflection of the entire yearÓs

performance.

37 . Respondent has argued that Principal Rochelle has

retaliated against him. If that were the case, this observation

would have been a perfect opportunity to retaliat e against him .

However , she found no deficiencies in his performance on this

day.

c) Scott Lake SPE Ï Professional Practice

38 . Throughout the rest of the school year, Principal

Rochelle made other credible observations regarding RespondentÓs

performance. Despite her counseling that he meet with parents ,

he refused to do so . He refused to participate in activities ,

including field trips, school celebrations , and award ceremonies.

Other teachers actually had to hand out awards for him at the

ceremony. H e refused to implement group instruction techniques

and did not take advantage of the presence of reading and math

coaches. He refused to implement progressive discipline and

Ðred, green, yellowÑ behavior management techniques. He refused

to implement va rious discipline strategies laid out in the

Student Code of Conduct and school - wide discipline plan prior to

writing SCMs on students. Principal Rochelle recalls that he

wrote approximately 25 SCMs on one student within the first nine

weeks of school and made no attempt to address the behavior

issues with the studentÓs parents. At one point Principal

Rochelle accommodated his request to have a student removed from

his class.

39 . Since this was only Principal RochelleÓs first full

year as principal of Sco tt Lake , and she was still new to the

school , she tended to give the teachers the benefit of the doubt

when completing their SPEs. She also had a few teachers who had

to be terminated for lack of professionalism that were more of a

priority for her than R espondent . As such, she rated Respondent

as ÐeffectiveÑ in six standards on his SPE and as

Ðdeveloping/needs improvementÑ for the Communication standard.

In her view , ÐeffectiveÑ is akin to a ÐCÑ grade, whereas Ðhighly

effectiveÑ is ÐA plus/high BÑ statu s, Ðdeveloping/needs

improvementÑ is a ÐD , Ñ and ÐunsatisfactoryÑ is an Ð F. Ñ

40 . When asked what Respondent would have rated himself in

these seven standards, he testified he would have given himself

five Ðhighly effectivesÑ and two Ðeffectives.Ñ He belie ves

Principal Rochelle rated him lower than she should have as a

result of retaliation against him for him not wanting to teach

Spanish. This is RespondentÓs second claim of retaliation

against Principal Rochelle, and third claim of retaliation

overall. Principal Rochelle Ós denial of such retaliation is

credited based upon her testimony at hearing and the exhibits

offered in support .

41 . Despite the fact that RespondentÓs 2013 - 2014 SPE seemed

adequate to a casual observer (with the only obvious blemish

b eing the Ðdeveloping/needs improvementÑ in the Communication

standard) , when compared to his peers , a different story emerges.

His professional practice points total put him in the bottom .8

percentile for all teachers d istrict - wide and in the bottom 2.6

percentile for all f irst - g rade teachers d istrict - wide. Without

belaboring the data, RespondentÓs professional practice scores

are at the bottom of the barrel, regardless of how you spin them.

d) Scott Lake VAM and overall SPE Rating

42 . RespondentÓs L oc al VAM score for learner progress

points was 12.5 points Î - the lowest possible score. He was one of

11 first - grade teachers d istrict - wide who scored the bare

minimum, putting him in the lowest ( 0 ) percentile. His overall

SPE Rating for the 2013 - 2014 schoo l year was ÐNeeds Improvement.Ñ

Only 29 percent of his first - grade students met or exceeded their

performance expectations.

43 . RespondentÓs VAM was based on the performance of his

first - grade students. Respondent believes that , since he was

moved to th e class in early November 2013, and the SAT exam was

given in April, he should not be held accountable for their

performance. In order for him to have a fair shake, he claims he

would have had to be there instructing the students on week one .

Respondent says the amount of time he was given was not fair

because, Ð if IÓm the lowest teacher in Miami - Dade County, and

here for termination, no, sir, I donÓt think it was fair.Ñ If

the rule Respondent proposes were implemented as policy, any

teacher could simply avoid responsibility for their studentÓs

performance by requesting a transfer sometime after the first

week of the year. It is also not uncommon for teachers to have

students added or subtracted from their classes throughout the

year for a multitude of r easons. This is a fact of life that

teachers have to be able to cope with in the ordinary course of

business for the School District.

44 . Moreover, and somewhat ironically, if another teacher

had been teaching RespondentÓs students for a portion of the

y ear, based on his SPE Ratings and student achievement data,

Respondent probably would have had better score s . T he students

would likely have been getting a more effective teacher than he .

45 . Respondent also claims Principal Rochelle gave him a

lower fun ctioning group of students , who were behind in their

learning. He explained that he knew they were low - functioning

because he gave them ÐSTAR testsÑ to gauge their ability levels.

When pressed on cross - examination , Respondent admitted that he

only tested his own students and never anyone elseÓs. Therefore,

it would be impossible for him to know whether his students were

any lower - functioning or further behind than any other teachersÓ

students. RespondentÓs doubtful claim is further undercut by

Principal RochelleÓs credible testimony that she selected the

members of his first - grade class at random from overcrowded

classrooms.

46 . RespondentÓs claims that he was robbed of instructional

time by field trips and fundraising activities , matters that are

requi red of all teachers, are unconvincing excuses for his

studentsÓ poor performance.

The 2014 - 2015 School Year at Norwood

47 . Shortly after the start of the 2014 - 2015 school year,

Respondent requested a hardship transfer to Norwood Elementary

School (ÐNorwoo dÑ) because the school day at Scott Lake was going

to be increased by one hour. Despite the fact that he would have

been compensated approximately $4 , 500.00 for this time, he chose

to transfer schools.

48 . Principal Kevin Williams (or Dr. Williams) had a

teacher on leave so he assigned Respondent to fill that gap.

Respondent started teaching a kindergarten class , but was moved

to a second - grade class during the first week of school .

49 . Prior to conducting a formal IPEGS observation of

Respondent, Dr. W illiams had performed several walkthroughs of

his classroom. Based on these walkthroughs , Dr. Williams advised

Respondent that he was not properly implementing the school

discipline plan. Respondent also refused to implement ÐgroupingÑ

of the students du ring instruction time. Dr. Williams also had a

reading coach model lessons for Respondent and assigned him a

teaching assistant. Respondent was the only teacher who received

this level of assistance. Dr. Williams even went so far as to

have two meetings with UTD prior to his formal evaluation of

Respondent in order to help him. By October 2014, Dr. Williams

had already explained his expectations to Respondent.

a) Formal IPEGS observation

50 . On October 1, 2014, Principal Williams performed the

formal IPEGS evaluation of Respondent. Principal Williams noted

no deficiencies on that day. Generally speaking , Principal

Williams does not view these observations as punitive.

51 . Over the years , Dr. Williams has conducted

approximately 240 observations of t eachers , and , generally , the

employees are Ðon pointÑ when being watched. Moreover, like

Principal Rochelle, Dr. Williams views these observations as a

snapshot of teacher performance while the SPE captures the year -

long performance.

52 . In the report of the observation, Dr. Williams

suggested that Respondent p romote interactions with students,

encourage more student participation, connect to prior student

knowledge and interests , and present concepts at different levels

of complexity , among other items .

b) Norwood SPE Ï Professional Practice

53 . After the formal observation, Dr. Williams continued to

conduct walkthroughs of RespondentÓs class. He observed the same

issues with refusing to use ÐgroupingÑ and refusing to properly

implement the discipline pl an. Respondent never took advantage

of the modeling techniques that w ere provided for him. He also

was not implementing differentiated instruction. Dr. Williams

himself held a professional development class on campus for the

school discipline plan, whic h, instead of attending, Respondent

attended a social studies class off campus.

54 . Instead of following the prescribed discipline plan,

Respondent was trying to control the behavior of his students

with treats. Similar to his time a t Scott Lake, he refu sed to

participate in field trips, staff gatherings, award assemblies ,

and student activity days.

55 . Respondent had lesson plans, but did not always follow

them. He would spend an inordinate amount of time on vocabulary.

He gave some tests, but would refuse to grade other tests. The

pattern of his teaching was inconsistent, at best.

56 . On his SPE, Principal Williams rated Respondent as

ÐeffectiveÑ in five standards, Ðhighly effectiveÑ in one, and as

Ðdeveloping/needs improvementÑ for the Learning En vironment

standard. Dr. Williams Ó rating for Learning Environment was

lower because Respondent failed to implement appropriate

discipline strategies despite being told to do so. In eight

years of being a principal, this was the first time he ha d ever

giv en a teacher a Ðneeds improvementÑ rating. He mostly gives

his teachers combinations of Ðhighly effectiveÑ and Ðeffective , Ñ

if they do what they are supposed to do. Nevertheless,

Dr. Williams testified he still went easy on Respondent because

he was new to the school.

57 . In terms of his SPE professional practice points,

Respondent scored in the bottom two percentile for second - grade

teachers d istrict - wide and was the worst rated second - grade

teacher at Norwood.

58 . Instead of following the discipline p lan, Respondent

was using the emergency call button, writing SCMs , and writing to

the s uperintendent to have ten students removed from his class.

Another teacher at the school, Mr. W, had the exact same set of

students as Respondent, only he taught them i n the afternoon and

not in the morning. He had none of the same behavior management

issues Respondent had with this same group of children.

Respondent claimed that Mr. W was able to manage the children

better because , like the students, he was African - Ame rican.

59 . When asked how Respondent would have rated himself in

these seven SPE standards, he would have given himself six

Ðhighly effectivesÑ and one Ðeffective.Ñ He believes

Principal Williams rated him lower than he should have as a

result of retalia tion against him for writing SCMs and because he

complained about the size of his initial kindergarten class.

This marked RespondentÓs fourth claim of retaliation overall.

Principal Williams credibly denied such retaliation at the

hearing.

c) Norwood VA M and overall SPE Rating

60 . RespondentÓs L ocal VAM score for learner progress

points was 8.75 points - Î the lowest possible score , again. He was

one of 50 first - grade teachers d istrict - wide who scored the bare

minimum putting him in the lowest ( 0 ) percent ile. His overall

SPE Rating for the 2014 - 2015 school year was ÐNeeds Improvement.Ñ

Only six percent of his second - grade students met or exceeded

their performance expectations.

61 . Respondent believes that his VAM points from Norwood

should not be consi dered because of his studentsÓ behavioral

issues. He also stated he did not have enough textbooks to send

home with students. Much like at Scott Lake, he believes he was

intentionally given bad students. This is peculiar for two

reasons. First, Dr. Wil liams first tried to assign Respondent

another class, but Respondent complained that one was too big.

To accept this argument, the viewer would have to believe

Dr. Williams knew Respondent woul d reject the larger class , and

the principal had another one i n the wings filled with ÐbadÑ

students to make Respondent look ineffective. Second, Mr. W had

none of the same problems Respondent did with th is same group of

students in the afternoon . To accept this contention , Principal

Willi a ms Ó plan only ÐworkedÑ on Respondent , since he was singled

out for retaliation. This line of argument is nonsensical, at

best.

The 2015 - 2016 and 2016 - 2017 School Years

at Aventura Waterways K - 8

62 . In looking for the right fit, Respondent was sent to

Aventura Waterways K - 8 (ÐAW K8Ñ) for the 2015 - 2016 school year .

He remained there for the 2016 - 2017 school year until he was

dismissed from his employment in March 2017.

63 . As at his previous school assignments, the

administrators at AWK8 tried to work with Respondent and the U TD

to let him know their expectations prior to the formal

observations.

64 . During these two school years Respondent was observed

formally by Principal Luis Bello and A ssistant P rincipal Ileana

Robles on no less than nine occasions. In both years , during hi s

initial observations , his performance was found to be deficient ;

and he was immediately placed on support dialogue and ,

eventually , 90 - day performance probation. During these two

probationary periods, he was provided assistance through

improvement plans and completed all his improvement plan

assignments. The goal was to help him remediate his

deficiencies. The only change he ever implemented was switching

from block to weekly lesson plans. Both h is instructional

delivery and the learning environment n ever improved.

65 . During these observations, Principal Bello and

Assistant Principal Robles both observed the same repeated

deficiencies , which they described in meticulous detail at the

hearing . Summarizing their testimony, the issues concerning

Respon dent were:

a. Pacing . Respondent spend s too much time on issues and

did not complet e entire lesson plans.

b. Questioning students . Respondent only us es basic, easy

to answer questions ; does not ask enough questions ; or is

dismissive of questions .

c. Failing to properly explain concepts to students or to

activate prior knowledge . Respondent fails to prompt students in

order to gener ate interest in the subject matter and holds no

conversations about the material in class.

d. Not using challenging en ough material . RespondentÓs

material was so basic that parents were concerned their children

were getting grades they did not deserve and not learning grade -

appropriate material .

66 . Principal Bello described RespondentÓs instruction as

ÐroboticÑ and lac king any semblance of Ðpassion.Ñ

a) AWK8 Ï Professional Practice

67 . On his SPE, Principal Bello rated Respondent as

ÐeffectiveÑ in two standards, and ÐunsatisfactoryÑ in five

standards. Principal BelloÓs ratings were in line with the

repeated deficiencie s discussed above. He awarded Respondent

ÐunsatisfactoryÑ ratings because Respondent never remediated his

deficiencies. Principal Bello credibly stands by his SPE R atings

as honest and admits to spending a great deal of time on them.

68 . In terms of his SPE professional practice points for

2015 - 2016 , Respondent scored in the bottom ( 0 ) percentile for

fifth - grade teachers at AWK8, all teachers at AWK8, fifth - grade

teachers d istrict - wide , and all teachers d istrict - wide.

69 . When asked what Respondent woul d have rated himself in

these seven standards, he would have given himself seven Ðhighly

effectives.Ñ He believes Principal Bello rated him lower than he

should have been rated, but could not say why.

b ) AWK8 VAM and overall SPE Rating

70 . RespondentÓs State VAM score for learner progress

points was 8.5 points - Î the lowest possible score , for the third

year in a row. He was the only one of 98 fifth - grade teachers

d istrict - wide who scored the bare minimum, putting him in the

lowest ( 0 ) percentile. His ov erall SPE Rating for the 2014 - 2015

school year was ÐNeeds Improvement.Ñ Only 32 percent of his

fifth - grade students met or exceeded their performance

expectations.

71 . Respondent believes that his VAM points from AWK8 are

not legitimate for a variety of reasons, none of which relate to

his own shortcomings. RespondentÓs excuses and the reasons not

to credit those excuses are as follows:

a. Respondent argue s that his VAM cannot be counted against

him because his afternoon class of fifth graders were ELL , and

they spoke a variety of languages , including French, Russian,

Hebrew, Portuguese, Spanish, and Turkish. His theory was that

they performed poorly because of their poor grasp of the English

language. For VAM scoring purposes, t his excuse should not be

credited because the VAM already takes into account their ELL

status by comparing them only to other ELL students with

identical demographics and prior test scores; and they are not

expected to perform as well as non - ELL students. However, by

Responden tÓs own admission his afternoon ELL class was the best

class he had had in ten years of teaching. He said they had

emotional balance, presence of mind , and good parental

engagement. He even explain ed how his ESOL certification

assisted him in understandi ng how to teach them. According to

him, by the end of the year, the students were at the level where

they would be having conversations. Respondent also had another

ESOL - certified teacher assist him for a portion of the year ,

which was a standard practic e. Finally, ELL students , who are

brand new to the country , are not calculated into the VAM because

there are no prior year scores for which they can be compared

Ðapples to apples . Ñ Respondent himself testified that the lowest

level ELL students did not get graded. This makes sense because

Respondent testified that his afternoon ELL class was 31

students - Î yet only 15 ELL students were factored into the data

used to calculate his VAM score for 2015 - 2016. In sum , the

grades of the lowest English language functioning students were

not even held against him.

b. Respondent next argue s that the numbers of students in

both his morning and afternoon classes at AWK8 exceeded class

size restrictions. Respondent ÐbelievesÑ his morning class had

24 or so students , but only 18 after the special education

students were removed. W hen the student data is examined , it

appears that Respondent only had 15 non - ELL students factored

into his VAM score. As for the afternoon ELL class, otherwise

considered by him the best class he has ever had, Respondent

claims there w ere 31 in that class. Even assuming RespondentÓs

numbers are accurate (and they do not seem to be , given the VAM

data), these class sizes do not run afoul of class size

restrictions and are commonplace at AW K8. The School District

operates on averages for class size compliance and everyone

teaching fifth grade at AWK8 had similar class sizes. None of

those other teachers had the same problems Respondent did.

Moreover , Respondent reported the alleged class size violations

to the FDOE , and they did nothing about it.

c. Respondent further argue s that his morning group of

s tudents was once again a ÐbadÑ group that did not give him a

Ðfair shot.Ñ According to Respondent , he had a student who would

sit in a g arbage can and another that would te ll him ÐF_ _k youÑ

every day. H e had behavior concerns with four to five students

in the morning class. Eventually , the student who sat in the

garbage can was removed from the class. Respondent then

testified that the se behavior issues were exacerbated by his

absence from the classroom when he was perf orm ing his improvement

plan activities. He now appears to be placing his behavior

concerns on the administration for doing their job by trying to

assist him and by remed iat ing his deficiencies . Behavior

management is integral to being a teacher. A teacher must not be

allowed to escape his or her own responsibility for performance

shortcomings by blaming it on the students. At every school

where Respondent has taught , h e has admittedly written a large

number of SCMs, had behavior issues with his students, and

believes he was purposely given ÐbadÑ students. The only common

thread among these schools is Respondent . Nevertheless, he

refuses to acknowledge that he might po ssibly be even a part of

the problem and believes he has done nothing wrong.

d. Respondent also blames his poor VAM on the fact that

fundraising activities, book fairs, student activity days , and

dances all detracted from instructional time at AWK8. Th is is

the same excuse he used for his poor VAM at Norwood and holds no

weight , since these are activities that all teachers at all

schools must cope with as part of the instructional process .

RespondentÓs Termination by the School Board

72 . RespondentÓs c ase was the first of its kind brought

pursuant to section 1012.33(3)(b) (Ð3 - year provisionÑ) , since

this was the first time the School District had the requisite

number of yearsÓ data available.

73 . Of the thousands of teachers working for M iami - D ade

C oun ty P ublic S chools , Respondent was part of a singular group of

seven to nine teachers who fell into the three - year provision of

the statute having the necessary combination of Ðneeds

improvementÑ or ÐunsatisfactoryÑ final overall SPE Ratings. Of

that handf ul of teachers, Respondent was the single worst.

RespondentÓs performance actually declined each year despite the

assistance provided for and made available to him.

CONCLUSIONS OF LAW

7 4 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.569, 120.57 and

1012.33(6)(a).

75 . In accordance with the provisions of A rticle IX ,

s ection 4(b) of the Florida Constitution, district school boards

have the authority to operate, control, and supervise all free

public schools in their respective districts and may exercise any

power except as expressly prohibited by the State Constitution or

general law. A school boardÓs authority extends to personnel

matters and includes the power to suspend and dismiss employees.

§§ 1001.32(2), 1001.42(5), 1012.22(1)(f), and 1012.23(1), Fla.

Stat.

76 . In Florida, the district superintendent has the

authority to make recommendations for dismissal of school board

employees, and the school board has the authority to suspend

without pay school board instructional staff with professional

service contracts for Ðjust cause.Ñ §§ 1001.42(5),

1012.22(1)(f), and 1012.33(6)(a), Fla. Stat.

77 . Petitioner bears the burden to prove the charges

against Responde nt by a preponderance of the evidence. Allen v.

Sch. Bd. of Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3d DCA 1990)

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

DCA 1990)); McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476,

477 (Fla. 2d DC A 1976); and § 120.57(1)(j), Fla. Stat.

78 . The preponderance of the evidence standard requires

proof by Ðthe greater weight of the evidenceÑ or evidence that

Ðmore likely than notÑ tends to prove a certain proposition. See

Gross v. Lyons , 763 So. 2d 276 , 280 n.1 (Fla. 2000) (citations

omitted) ; see also Williams v. Eau Claire Pub. Sch. , 397 F.3d

441, 446 (6th Cir. 2005) (holding trial court properly defined

the preponderance of the evidence standard as Ðsuch evidence as,

when considered and compared with that opposed to it, has more

convincing force and produces . . . [a] belief that what is

sought to be proved is more likely true than not trueÑ).

79 . ÐJust causeÑ is defined to include misconduct in

office. See § 1012.33(1)(a), Fla. Stat.

80 . The Schoo l BoardÓs authority to terminate a teacher

requires Ðjust causeÑ as defined under section 1012.33, which

provides, in relevant part:

(1)(a) Each person employed as a member of

the instructional staff in any district

school system shall be properly certif ied

pursuant to s. 1012.56 or s. 1012.57 or

employed pursuant to s. 1012.39 and shall be

entitled to and shall receive a written

contract as specified in this section. All

such contracts, except continuing contracts

as specified in subsection (4), shall c ontain

provisions for dismissal during the term of

the contract only for just cause. Just cause

includes, but is not limited to, the

following instances, as defined by rule of

the State Board of Education: immorality,

misconduct in office, incompetency, two

consecutive annual performance evaluation

ratings of unsatisfactory under s. 1012.34,

two annual performance evaluation ratings of

unsatisfactory within a 3 - year period under

s. 1012.34, three consecutive annual

performance evaluation ratings of needs

improvement or a combination of needs

improvement and unsatisfactory under s.

1012.34, gross insubordination, willful

neglect of duty, or being convicted or found

guilty of, or entering a plea of guilty to,

regardless of adjudication of guilt, any

crime in volving moral turpitude.

81 . Because section 1012.33 is not an all - inclusive list,

school boards have the discretion to determine what actions

constitute just cause for suspension or dismissal. Dietz v. Lee

Cnty. Sch. Bd. , 647 So. 2d 217 (Fla. 2d DCA 1 994).

82 . In order for students to achieve in a public school

system, it is mandatory that teachers effectively perform the

duties of their position in accordance with the generally

accepted standards of the profession. In 2011, the Florida

Legislature amended section 1012.34 to more closely align the

performance expectations of a teacher to the ratings in a

teacherÓs annual performance evaluation. Additionally, section

1012.33 was amended to specifically incorporate the ratings on a

teacherÓs annual pe rformance evaluation into the criteria for

continued employment with a school board. The offense of three

consecutive ratings of Ðneeds improvementÑ and ÐunsatisfactoryÑ

was added to the list of offenses constituting Ðjust causeÑ for

termination during th e term of a contract. Also, the statute

prohibits renewal of a professional service contract where a

teacher has received consecutive negative ratings. As described

above, Respondent received an unprecedented (in the Miami - Dade

S chool D istrict) final rat ing of Ðneeds improvementÑ or Ðneeds

improvementÑ and ÐunsatisfactoryÑ for each of the three years

preceding the superintendentÓs recommendation to terminate his

employment (2013 - 2014, 2014 - 2015, and 2015 - 2016) , and even well

into the 2016 - 2017 school year . Accordingly, there is just cause

to terminate RespondentÓs professional service contract.

83 . Florida Administrative Code Rule 6A - 5.056 (State Board

of Education Rule) , Criteria for Suspension and Dismissal,

provides , in relevant part , that:

ÐJust cau seÑ means cause that is legally

sufficient. Each of the charges upon which

just cause for a dismissal action against

specified school personnel may be pursued are

set forth in Sections 1012.33 and 1012.335,

F.S. In fulfillment of these laws, the basis

fo r each such charge is hereby defined:

* * *

(3) ÐIncompetencyÑ means the inability,

failure or lack of fitness to discharge the

required duty as a result of inefficiency or

incapacity.

(a) Ð InefficiencyÑ means one or more of the

following:

1. Fa ilure to perform duties prescribed by

law;

2. Failure to communicate appropriately with

and relate to students;

3. Failure to communicate appropriately with

and relate to colleagues, administrators,

subordinates, or parents;

4. Disorganization of his or her classroom

to such an extent that the health, safety or

welfare of the students is diminished; or

5. Excessive absences or tardiness.

84 . RespondentÓs duties as prescribed by law include the

following as set out in section 1012.53:

(1) The pri mary 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 prepared for p ostsecondary 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 district school

board. The rules shall include, but are not

limited to, rules relating to a teacherÓs

duty to help students master challenging

standards and meet all state and local

requirements for achievement; teaching

efficiently and faithfully, using prescribed

mater ials and methods, including technology -

based instruction; recordkeeping; and

fulfilling the terms of any contract, unless

released from the contract by the district

school board.

8 5 . RespondentÓs conduct constitutes incompetency due to

inefficiency becau se:

a . Respondent has repeatedly failed to perform his duties

as prescribed by law in that his students have consistently

failed to meet or exceed annual learning goals and achievement

requirements; he has repeatedly refused to follow approved

methods of instruction and discipline given to him by various

administrators; and he has repeatedly failed to perform duties as

directed, including , but not limited to, teaching kindergarten

Spanish and grading papers ;

b . Respondent has repeatedly failed to commun icate with and

relate to students , thereby depriving them of a minimal

educational experience. In particular , he claimed he was unable

to adequately relate to the students at Norwood ;

c . Respondent has repeatedly failed to adequately

communicate with pa rents at Scott Lake and failed to communicate

with parents at Norwood before writing SCMs on their children;

and

d . Respondent has failed to maintain an orderly classroom

which has diminished the learning environment for his students as

evidenced by their poor performance. Respondent has admitted

that the behavior of his students resulted in their low scores,

yet showed no ability to maintain order in his classroom and

constantly blamed the disorder on causes other than himself.

86 . Accordingly, Respond entÓs conduct, as described herein,

constitutes just cause for dismissal from employment.

87 . Finally, as to the count concerning ÐMisconduct in

Office,Ñ r ule 6A - 5.056 (2) defines the term as follows:

(a) A violation of the Code of Ethics of the

Education Profession in Florida as adopted in

Rule 6A - 10.080, F.A.C.;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule

6A - 10.081, F.A.C. ;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the studentÓs

learning environment; or

(e) Behavior that reduces the teacherÓs

ability or his or her colleagues Ó ability to

effectively perform duties .

88 . The Principles of Professional Conduct for the

Education Profession in Florida, Florida Administrative Code Rule

6A - 10.081 (2016) provide s, in relevant part, as follows:

(1) Florida educators shall be guided by the

following ethical principles:

(a ) The educator values the worth and

dignity of every person, the pursuit of

tr uth, devotion to excellence, acquisition of

knowledge, and the nurture of a democratic

citizenship. Essential to the achievement of

these standards are the freedom to learn and

to teach and the guarantee of equal

op portunity for all.

(b) The educatorÓs p rimary professional

concern will always be for the student and

for the development of the studentÓs

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(c) Aware of the importance of maintaining

the respect and confidence of oneÓs

colleagues, of students, of parents, and of

other members of community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

89 . School Board Policy 3210 Î S tandards of Ethical

Conduct, provides in relevant part:

All employees are representatives of the

District and shall conduct themselves, both

in their employment and in the community, in

a manner that will reflect credit upon

themselves and the school syste m.

A. An instruction al staff member shall :

1. teach efficiently and faithfully, using

the books and materials required, following

the prescribed courses of study, and

employing approved methods of instruction as

provided by law and by the rules of the State

Department of Education;

* * *

3. make a reasonable effort to protect the

student from conditions harmful to learning

and/or to the student's mental and/or

physical health and/or safety;

90 . School Board Policy 3210.01, Code of Ethics, pro vides

in relevant part:

Each employee agrees and pledges:

* * *

H. To be efficient and effective in the

performance of job duties.

91. Respondent argues that the School Board has not met

its burden of proving the annual performance ratings for the

2013 - 2014 and 2014 - 2015 school years are legitimate and,

therefore, cannot be relied upon to meet the statutory

requirements for dismissal. As set forth above, not only were

the scores given for RespondentÓs ratings for those years

legitimate, they ar e supported by significant evidence

demonstrating a teacher who was not competent to teach the

students in every school to which he was assigned, except,

arguably, at his initial assignment to Little River. His

classroom failures were well documented by P etitioner and his

offered excuses for not performing place the blame on everyone

and everything , but himself. For an individual with his high

level of education and willingness to acquire the various

certifications asked of him, his failure to perform at a high

level of proficiency while refusing tasks , such as teaching basic

Spanish to kindergartners and participat ing in school activities ,

remains a mystery. The fact that his lack of performance was

documented by different principals at different schools

strengthens the fact that his claims of being singled out for

unfair treatment are unsupported by the evidence. PetitionerÓs

decision to terminate RespondentÓs employment was heavily

supported by the evidence produced at hearing and should be

upheld.

92 . As described above, Respondent has not been efficient

and effective in the performance of his job duties. His students

have failed to meet or exceed annual learning goals. Moreover,

his ineffective teaching methods have been observed by multiple

school administrators , from multiple schools, who have all found

recurring and similar deficiencies regarding RespondentÓs

performance. RespondentÓs conduct, as set forth herein,

constitutes conduct not in conformance with provisions of the

Florida Administrati ve Code and School Board Policies cited

above. Accordingly, RespondentÓs conduct, as described herein,

constitutes misconduct in o ffice and provides just cause for

dismissal from employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Concl usions of

Law, it is RECOMMENDED that Petitioner enter a final order

terminating RespondentÓs employment as a teacher.

DONE AND ENTERED this 1 5 th day of March , 201 8 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 5 th day of March , 201 8 .

COPIES FURNISHED:

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761

(eServed)

Christopher J. La Piano, Esquire

Miami - Dade County School Board

Suit e 430

1450 Northeast Seco nd Avenue

Miami, Florida 33132

(eServed)

Alberto M. Carvalho, Superintendent

Miami - Dade County School Board

Suite 912

1450 N ortheast Second Avenue

Miami, F lorida 33132 - 1308

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eSer ved)

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 Fin al Order in this case.