18-000394TTS Volusia County School Board vs. Susan L. Joy Status: Closed Recommended Order on Friday, May 18, 2018.

Summary: The School Board proved just cause for terminating the employment of Respondent, Susan L. Joy.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VOLUSIA COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 18 - 0394TTS

SUSAN L. JOY,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final formal a dministrative hearing

was conducted in this case on March 21 , 2018 , in Deland ,

Florida, before Administrative Law Judge R. Bruce McKibben of

the Division of Administrative Hearings ( Ð DOAH Ñ ) .

APPEARANCES

For Petitioner: Thomas Martin Gonzalez, Esquire

Nathan J. Paulich, Esquire

Thompson, Sizemore, Gonzalez

and Hearing, P.A.

Suite 1600

201 North Franklin Street

Tampa, Florida 33601

For Respondent: Susan L. Joy, pro se

Apartment B2

980 Canal View Boulevard

Por t Orange, Florida 32129

STATEMENT OF THE ISS UE

The issue in this case is whether just cause exists for the

action taken by Petitioner, Volusia County School Board (the

ÐBoardÑ) , to terminate the employment of Respondent, Susan L.

Joy .

PRELIMINARY ST ATEMENT

By letter dated December 19, 2017, the Director of

Professional Standards for the Board notified Ms. Joy that a

recommendation would be mad e to the Board at its next scheduled

meeting that Ms. JoyÓs employment be terminated . Ms. Joy timely

reques ted an administrative hearing to contest the proposed

recommenda tion. The request for a hearing was referred to DOAH

on January 23, 2018 . The final hearing was set on the date

noted above. T wo days prior to the final hearing, Ms. Joy filed

a motion seek ing a continuance, but did not show the existence

of any emergency as required by F lorida Administrative Code

Rule 28 - 106.210 . Ms. Joy stated at final hearing that she had

not receive d a copy of the Notice of Hearing which had been

issued by DOAH on Febru ary 6, 2018. The records at DOAH do not

reflect a return of the notice, which had been sent to Ms. JoyÓs

address of record. Ms. Joy did not make th e assertion about the

notice in her request for a continuance, and the best evidence

is that she had timely and proper notice of the final hearing.

Thus, the request for a continuance was denied.

At the final hearing, the Board called four witnesses:

Carolyn Carbonell, principal at Deltona High School (the

ÐSchoolÑ); Jennifer Lastowski, math coach; Jayne Baxt er,

assistant principal at the School; and Brandy Hogue, coordinator

for evaluation and assessment for the Board . The Board offered

E xhibits 1 through 15 into evidence, each of which was admitted .

Ms. Joy testified on her own behalf but did not call any other

witnesses . She did not offer any exhibits into evidence.

The parties advised the undersigned that a transcript of

the final hearing would be ordered. By rule, t he parties are

allowed 10 days from the date the transcript i s filed at DOAH to

submit proposed recommended orders (ÐPROÑ) . The T ranscript was

filed on April 12, 2018. The Board timely submitted a PRO ;

Ms. JoyÓs PRO was file d late due to her erroneous calculation of

days . Nonetheless, both parties' PROs were given due

consideration in th e preparation of this Recommended Order.

FINDINGS OF FACT

1 . The Board is responsible for hiring, retaining, and/or

terminating employment of all teachers in Volusia County . The

recommendation for direct hiring or firing of teachers is made

by individua l schools, but the Board has ultimate authority over

those decisions .

2 . Ms. Joy has been a teacher for 17 years. She holds

certifications in sev eral areas, including: Health , grades

K through 12; Physical Education , grades 6 through 12;

Exceptional Stu dent Education (Ð ESE Ñ), grades K through 12; and

Math , grades 5 through 9; a s well as endorsements in a utism ,

English as a second language , gifted students, and e lementary

education.

3 . Prior to the 20 16 - 2017 school year , Ms. Joy applied for

a teaching po sition at the School . She was interviewed by

assistant principal Baxter and math coach Lastowski, who

recommended to Principal Carbonell that Ms. Joy be hired as a

math and ESE teacher. When Principal Carbonell reviewed

Ms. JoyÓs employment history and r eferences, she had some

reservations about hiring Ms. Joy . There were too many Ðred

flagsÑ and Principal Carbonell decided it would not be in the

SchoolÓs best interest to have Ms. Joy on staff. However,

Principal Carbonell began to have second thoughts and decided to

interview Ms. Joy personally. After the interview, Principal

Carbonell decided to offer Ms. Joy a position as a teacher for

ESE in parallel classrooms, Algebra I and Geometry. Principal

Carbonell, however, impos ed certain caveats to the hi re,

including immediate monitoring of Ms. JoyÓs performance upon

commencing her employment at the School. Principal Carbonell

also advised Ms. Joy to forego coaching cross country (one of

Ms. JoyÓs passions) and to concen trate on academic matters.

Ms. Jo y accepted her hiring on those conditions.

4 . At the commencement of the 2016 - 2017 school year,

assistant principal Baxter was assigned to supervise Ms. Joy and

make sure her teaching methods and process es were sufficient.

Ms. Joy was also advised that t he math coach, Ms. Lastowski, was

available for consultation as needed. Ms. Joy agreed to utilize

the math coach and to rely on her guidance and expertise.

5 . With that support in p lace, Ms. Joy began teaching

at the School. However, ev en though Ms. L astowski made

recommendations that speci fic strategies be employed, Ms. Joy

did not cooperate. Instead, Ms. Joy would reject the

strategies, saying they did not work for her class or that Ðher

brain did not work that way.Ñ Ms. LastowskiÓs efforts were

es sentially futile.

6 . As it became evident that Ms. Joy was having

difficulties in her classrooms, Principal Carbonell decided to

institute a semester ( 18 weeks ) of additional support. This

support was consistent with the system hammered out by the Board

and the local teachersÓ union. This system, entitled Volusia

System for Employment Teachers (ÐVSETÑ), included provisions

such as this to help struggling teachers retain their jobs.

Despite the support, Ms. Joy did not demonstrate improvement in

her teac hing skills.

7. As a result, Ms. Joy was placed on an Ð improvement

plan Ñ under the VSET. An improvement plan calls for

establishment of a support team picked jointly by the teacher

and School administration. For the team, Principal Carbonell

selecte d Gail Burton, a regional resource teacher; Nicholas

Fidance, assistant principal at a nother Volusia County school;

and Jennie Hughes, a principal intern. Ms. Joy chose Jennifer

Lastowski, math coach; Sharon Lavallee, a principal intern at

another school ; and Sandra Tweedy, a math specialist. This

support team was not created to perform evaluations of Ms. JoyÓs

work. They merely provided support in their area of expertise

to assist Ms. Joy in improving her teaching skills.

8 . The VSET Handbook sets a t imeline of 90 days for a

teacher to show improvement once a support team is in place.

Typically, one support meeting per month is held for the purpose

of offering suggestions to the teacher. In between the

meetings, the team members may shadow, or be sha dowed by, the

teacher for the purpose of constructive feedback. The VSET

states, at page 34: ÐIf sufficient improvement has not be en

demonstrated by the teacher while on the Improvement Plan,

termination of the teacherÓs employment will be recommended by

the Superintendent to the school board.Ñ Ms. Joy was fully on

notice as to the serious nature of having an improvement plan in

place.

9 . The first meeting of the VSET support team was held on

October 19, 2017. All memb ers of the team, as well as Ms. Jo y

and Brandy Hogue , were in attendance. The minutes of that

meeting note that the teamÓs role is to support, not evaluate,

Ms. Joy. The minutes also noted that the Improvement Plan would

be up for review on or after November 21, 2017. At the meeting,

Ms . Joy shared a little of her background, wherein she said that

she had had some personal and professional ÐsituationsÑ during

the past year. She welcomed the support team and expressed a

desire to improve her teaching skills . Four suggestions were

made a s means of pursu ing that improvement : 1) u se of the

ÐAlgebra NationÑ concept and attendance at P rofessional L earning

C ommunit y (ÐPLCÑ) meeting s; 2) work with the math coach on one

or both of two math schemes entitled CHAMPS and ACHIEVE;

3) observation of Ms. JoyÓ s classroom and feedback on what was

observed ; and, 4) having Ms. Joy shadow a teacher in a similar

teaching position.

10 . From the date of th at first meeting until the next

meeting on November 6, 2017, Ms. Joy attempted to utilize

ÐAlgebra Nation Ñ and made efforts to attend PLC meeting s. She

also indicated her intent to attend a ÐMamaÓs MathÑ class in the

future. The math coach, along with Ms. Burton and Ms. Tweed y,

assisted Ms. Joy in setting up the CHA MPS and ACHI EVE materials

in her classroom . Several district staff members conducted

observations of Ms. JoyÓs classroom and provided feedback.

Ms. Joy could not find another teacher to shadow, but said she

was still working on doing so. The goals set at this second

meeting were very similar to those of the prior meeting.

11 . The final VSET support tea m meeting was held on

December 4, 2017. The first point of discussion at that meeting

was the classroom observation Ms. J oy had undergone concerning

her teaching improvements. Ms. Joy admitted that it had not

gone well, that she had ÐchokedÑ and done poorly. As to the

improvement tools, Ms. Joy was continuing to use Algebra Nation

and had attended all but one of the PLC meeting s. She was using

the ACHIEVE, CHAMP , and Anchor Charts in her class room, but

inexplicably failed to u tilize them during the classroom

observ ation. She did shadow one teacher, but felt the

experience was not beneficial. The proposed interaction with

the math coach did not pan out as expected, mostly due to

Ms. Joy be ing unable to free up time on her schedule to meet

with Ms. Lastowski . The group then suggested that Ms. Joy

continue to work with the math coach and support team, that she

implement ÐstationsÑ in the classroom, and that she increase her

pacing, i.e., mov e along with her improvements.

12 . Despite the teamÓs admonishment to Ms. Joy to continue

improving, t wo weeks later Principal Carbonell made a

determination that (based on the findings from the last team

meeting) Ms. Joy had Ðfailed to show sufficient improvementÑ and

that termination of her employment would be recommended to the

Board. The decision was presented to Ms. Joy on Dece m ber 19,

2017. Ms. Joy signed a form acknowledging Principal CarbonellÓs

intended recommendation .

13 . One of Principal Ca rbonellÓs concerns about Ms. Joy

had been that Ms. Joy was involved in extracurricular activities

which interfered with her teaching. Specifically, Ms. Joy, who

had always been a runner until hampered by injuries, was

coaching the girlsÓ cross country tea m. Although Principal

Carbonell had advised Ms. Joy at the time she was hired not to

be involved in extracurricular activities, Ms. Joy had

approached the athletic director and was named to coach the

team. Principal Carbonell reluctantly agreed to allow Ms. Joy

to coach since she had already cleared it with the athletic

director, but still believed it to be contrary to Ms. JoyÓs best

interest s . Obviously, Ms. Joy would have been better served to

have spent the time improving her teaching skills.

14 . Ms. Joy presented no evidence at final hearing to

refute the findings of the support team or those of Principal

Carbonell. Instead, she raised several issues concerning things

that restricted her progress. For example, she had undergone a

severe injury invo lving torn tendons and muscles at the

beginning of her tenure at the School . This injury not only

made it difficult to maneuver around a classroom, but it

prevented her from her passion, running, resulting in some

depression and anxiety , as well as on goin g physical pain and

stress . Ms. Joy alluded to some technological issues in her

classroom that stymied some of her efforts, but did not

demonstrate exactly what the problems were or that they were

significant. She complained about the absence of a perman ent

teacher in her area for support, claiming that the use of

interim teachers created more work for her. She provided no

other evidence and little explanation concerning this complaint.

She complained that she received little written feedback from

her s upport team, but did not address all of the verbal feedback

that had occurred . Ms. Joy stated that she had had no prior

problems at her previous places of employment and that she was

well - respected by the superintendent of schools and by many

school princ ipals. None of those persons testified at final

hearing , so Ms. JoyÓs representations , consisting of nothing

more than unsubstantiated hearsay, are rejected .

CONCLUSIONS OF LAW

15 . DOAH has jurisdiction over this matter pursuant to

s ections 120.569 a nd 120.57 (1) , Florida Statutes, and pursuant

to a contract between DOAH and the Board.

16 . The Board has the burden of pr oof in this matter as

it is the party asserting the affirmative of the issue. See

Balino v. D epÓt of HRS , 348 So. 2d 349 (Fla. 1st D CA 1977).

17 . The standard of proof is preponderance of the

evidence . See McNeil v. Pinellas Co. Sch. Bd. , 678 So. 2d 476,

477 (Fla. 2d DCA 1996).

18 . A teacher may be terminated Ðfor just cause pursuant

to section 1012.33, Florida Statutes, or base d upon uncorrected

performance proficiencies pursuant to section 1012.34, Florida

Statutes.Ñ Gabriele v. Sc h. B d. of Manatee Co. , 114 So. 2d 477,

480 (Fla. 2d DCA 2013).

19 . Section 1012.34(4)(b)2 . , discusses a teacherÓs failure

to timely correct defici encies . That statutory provision gives

a teacher the right to contest termination of employment by way

of a hearing at DOAH. Ms. Joy availed herself of that option,

resulting in the instant case.

20 . In this case, the Board was required to prove that

ju st cause exists for termination of Ms. JoyÓs employment. The

evidence is clear that, despite the SchoolÓs best efforts, there

was no marked improvement of Ms. JoyÓs teaching skills during

the period of her VSET improvement p lan. Ms. JoyÓs performance

as a teacher continued to be deficient, thus justifying the

termination of her employment by the Board.

21 . Ms. Joy did not rebut the BoardÓs evidence as to its

findings about her substandard performance. Instead, she raised

unsubstantiated claims that t he Board somehow abused the process

as it related to her case. Absent any competent evidence to

support her claims, they will not be addressed in this

Recommended Order.

22 . In accordance with section 1012.34(4)(b)2.b., the

following recommendation is ma de to the Board .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Petitioner,

Volus ia County School Board , upholding the recommendation to

terminate the employment of Resp ondent, Susan L. Joy .

DONE AND ENT ERED this 1 8 th day of May , 2018 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalache e 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 8 th day of May , 2018 .

COPIES FURNISHED:

Thomas Martin Gonzalez, Esquire

Nathan J. Paulich, Esquire

Thompson, Sizemore, Gonzalez

and Hearing, P.A.

Suite 1600

201 North Franklin Street

Tampa, Florida 33602

(eServed)

Susan L. Joy

Apartment B2

980 Canal View Boulevard

Port Orange, Florida 32129

Matthew Mears, General Counse l

Department of Educa tion

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eSer v ed)

James T. Russell , Superintendent

Volusia County School Board

200 North Clara Avenue

DeLand, Florida 32720 - 2118

Pam Stewart , Commi ssioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days fr om 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.