18-003302TTS Lee County School Board vs. Phyllis Miller Status: Closed Recommended Order on Friday, March 22, 2019.

Summary: Evidence supported School Board's decision to terminate Respondent as a teacher for incompetency.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 18 - 3302TTS

PHYLLIS MILLER,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge D. R. Alexan der conducted a hearing

in this case by video teleconference on January 16, 17, and 25,

2019, at sites in Fort Myers and Tallahassee, Florida.

APPEARANCES

For Petitioner: Brian Anthony Williams, Esquire

The School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

For Respondent: Robert J. Coleman, Esquire

Coleman and Coleman

Post Office Box 2089

Fort Myers, Florida 33902 - 208 9

STATEMENT OF THE ISSUE

The issue is whether just cause exists for Petitioner,

Lee County School Board (School Board), to terminate Respondent's

employment as a classroom teacher on the ground she is

incompetent and did not satisfactorily correct perf ormance

deficiencies.

PRELIMINARY STATEMENT

In a Petition for Termination dated May 29, 2018, the School

Board informed Respondent, a classroom teacher, that a

recommendation would be made by the superintendent to terminate

her employment for failing to ad equately perform her educational

duties. Respondent timely requested a hearing, and the matter

was referred by the School Board to the Division of

Administrative Hearings on June 26, 2018, to conduct a formal

hearing. By agreement of counsel, the final h earing was

continued twice because of substitution of School Board counsel.

At the final hearing, the School Board presented the

testimony of seven witnesses. School Board Exhibits 1 , 8, 9,

12 through 23, and 26 through 28 were accepted in evidence.

R espondent testified on her own behalf and presented one witness.

Respondent's Exhibits 1 through 10 were accepted in evidence.

A five - volume Transcript of the hearing has been prepared.

The parties timely submitted proposed recommended order s on

Marc h 8, 2019 , which h ave been considered in the preparation of

this Recommended Order .

FINDING S OF FACT

A. The Parties

1 . The School Board is charged with the duty to operate,

control, and supervise public schools in Lee County. This

includes the power to discipline instructional staff, such as

classroom teachers. §§ 1012.22(1)(f) and 1012.33, Fla. Stat.

(2018) .

2. Respondent began her teaching career in Dunnellon,

Florida, and has been certified as an educator since 1997. She

has been employed by the S chool Board as a classroom teacher

since 2001 and is certified in five areas, including exceptional

student education (ESE). She currently holds a professional

service contract, which is governed by the Collective Bargaining

Agreement between the School B oard and the Teachers Association

of Lee County (TALC Agreement).

3. Beginning in school year 2014 - 2015, Respondent was

assigned as a classroom teacher at Cypress Lake Middle School

(Cypress Lake) where she remained for three years. In school

year 2017 - 2018, Respondent was reassigned to Royal Palm

Exceptional Center (Royal Palm) as an ESE teacher.

B. The Intensive Assistance Program (IAP) Process

4. A performance evaluation must be conducted for each

employee at least once each year. § 1012.34(3)(a ), Fla. Stat.

The annual evaluation is found in the Annual Performance

Evaluation Form, which identifies the evaluation areas and

assigns to each area a "grade" of unsatisfactory, needs

improvement/developing, effective, or highly effective. Sch. Bd.

Ex. 17. A final performance rating also is given the employee.

If an employee is not performing his or her duties in a

satisfactory manner, section 1012.34(4) establishes a process for

addressing the performance deficiencies.

5. Under this process, the e valuator first must notify the

employee in writing that the employee is not performing her

duties in a satisfactory manner. The notice must include a

description of the unsatisfactory performance areas, make

recommendations with respect to the specific ar eas of

unsatisfactory performance, and offer assistance to the employee

to correct those deficiencies within a prescribed period of time.

The employee then is placed on "performance probation" for

90 calendar days (excluding school holidays and vacat ion periods)

following the receipt of the notice, during which time the

employee is "evaluated periodically and apprised of progress

achieved." Also, the employee is provided assistance and in -

service training opportunities to help correct the noted

perfo rmance deficiencies. Within 14 days after the close of the

90 - day period, the evaluator must decide whether the performance

deficiencies have been corrected and forward a recommendation to

the superintendent. Within 14 days after receiving the

recommenda tion, the superintendent must decide whether to

continue or terminate the employment contract.

6. To implement the foregoing statute, and to ensure that

employees who are not meeting professional standards are given an

opportunity to be successful, the Sc hool Board has created a

process known as the IAP, which provides more detail than the

statute itself. Sch. Bd. Ex. 26. The IAP is the School Board's

version of "performance probation."

7. According to the School Board's IAP Manual (Manual) , the

assis tance program is designed to "provide intensive direction

and support to employees who seem to be experiencing serious

difficulty in meeting professional performance standards." Id.

The School Board also has created a two - page outline of the IAP

process, which reiterates the steps to be followed when using the

process. Resp. Ex. 2. Notably, the goal of the process is not

to get rid of a teacher, but rather to make him or her

successful, especially at a time when the Lee County S chool

D istrict is facing a teacher shortage.

8. Once a decision is made to initiate the IAP process for

a teacher, an IAP team is picked by the superintendent or his

designee. The team consists of a "team coordinator," the

"immediate supervisor" of the employee being reviewed, another

"site administrator or manager," a "job - related coordinator or

supervisor," and "others, as may be appointed by the

Superintendent." Sch. Bd. Ex. 26. The teacher's union

representative also is invited to attend the meetings on behalf

of the teac her. And, of course, the affected employee attends

all meetings.

9. The Manual (but not the statute) calls for "not more

than eight meetings" of the IAP team, "typically scheduled

biweekly," during a 90 - day period. Id. An initial team meeting,

also kno wn as an "orientation meeting," is conducted at the

school site to review the areas of concern, identify the areas

needing improvement, and outline the IAP process. A binder is

given to each participant, which contains the IAP Manual and

outline. Written minutes of each meeting are prepared, typically

by the principal's secretary. The process is intended to be

confidential, with discussions of the observations to occur only

in team meetings. However, other persons may be called to a

meeting to "share in formation that might be relevant, or if the

teacher in question wants to bring somebody in."

10. During the IAP process, the teacher meets with team

members individually and as a group and receives feedback,

coaching, and suggestions. In addition, formal classroom

observations are made by team members so that they can address

any perceived deficiencies. The focus of the observations is in

the areas noted as "needs improvement" or "unsatisfactory." In

Respondent's case, the process was concerned not only with

classroom skills, but also with the preparation of individualized

education plans (IEPs) and how to properly conduct teacher/parent

IEP meetings, all deficient areas.

11. After the last meeting, the "[a]ssistance team meets

with [the] Executive Di rector of Human Resources to determine [a]

recommendation to [the] Superintendent." Sch. Bd. Ex. 26. The

Manual provides that after receiving the recommendation, the

superintendent shall take one of the following steps:

Performance meets standards - pla n follow - up

review;

Performance below standards - continued

assistance;

Reassignment to more appropriate position;

Withhold recommendation for reappointment;

Performance unacceptable file charges for

dismissal; or

Recommend employee's resignation b e accepted.

12. The establishment of an IAP team is not a regular

occurrence, and, in this case, was the first and only time that

the principals (and team members) at Cypress Lake and Royal Palm

participated in s uch a process.

13. Although Responden t denies that her performance

warrants termination, and she presented extenuating circumstances

to justify her lack of progress, the focus of her challenge is a

contention that in numerous respects, the Royal Palm IAP team and

school administrators (and to a lesser degree the Cypress Lake

team) did not follow strictly to the letter the process described

by the statute, Manual, and IAP outline.

C. Cypress Lake

i. Performance Issues

14. Respondent began teaching at Cypress Lake during school

year 2014 - 2015 . Besides teaching l anguage a rts/ r eading, she also

was a support facilitator and a self - contained ESE teacher for

the sixth grade. Ms. Maniscalco was the principal. Following

her first year, Respondent received an overall "Needs

Improvement" on her annu al performance evaluation. In her year -

end conference with the principal, Respondent did not object or

otherwise complain that the evaluation was incorrect.

15. Ms. Maniscalco's evaluation noted a variety of areas

where Respondent needed to improve or wa s unsatisfactory,

including: Demonstrating Knowledge of Resources and Technology;

Creating an Environment of Respect; Establishes a Culture for

Learning; Stops Misconduct by Using Effective Appropriate

Techniques; Using Questioning and Discussion Techniqu es; Engaging

Students in Learning; Showing Professionalism; Maintaining

Accurate Records; and Participating in a Professional Community.

Sch. Bd. Ex. 17.

16. Following her second year, school year 2015 - 2016,

Respondent again received a "Needs Improveme nt" on her annual

evaluation. Ms. Maniscalco cited numerous areas where Respondent

needed to improve or was unsatisfactory, including: Designing

Student Assessment; Setting Instructional Outcomes; Demonstrating

Knowledge of Resources and Technology; Esta blishes and Manages

Classroom Procedures; Stops Misconduct by Using Effective

Appropriate Techniques; Communicating with Students; Using

Questioning and Discussion Techniques; Engaging Students in

Learning; Using Assessment in Instruction; Demonstrating

Fl exibility and Responsiveness; Showing Professionalism; and

Maintaining Accurate Records. Sch. Bd. Ex. 17.

17. Based on formal observations of Respondent that year,

Ms. Maniscalco noted that Respondent failed to do "individualized

assessments" or "mo dified assessments" for her ESE students.

Also, after a year of working at Cypress Lake, Respondent still

did not know how to utilize the interactive SMART board in her

classroom or the District's Outlook email system, even though

training in both program s was provided. She observed that none

of the classroom guidance that Respondent received was being

utilized, and none of the children in Respondent's classroom were

"working." Rather, they were simply sitting there "playing when

[Ms. Maniscalco] would c ome in." On days when Respondent was

scheduled to have IEP meetings with students and parents,

Respondent sometimes would call in sick, and her IEP plans either

were not written or were completely wrong. Ms. Maniscalco then

would have to call in a substi tute ESE teacher who would be

forced to write a new plan in front of the parents.

18. During school year 2015 - 2016, Respondent had numerous

meetings with the principal; the head of the ESE department

worked with Respondent "on paperwork"; she was sent t o "quality

writing IEP" with another teacher; and Ms. Maniscalco conducted a

number of formal observations and provided feedback after those

observations. At the year - end conference with the principal,

except for stating that she was under a great deal of pressure,

Respondent did not provide a satisfactory response for her

continued deficiencies.

19. On May 18, 2016, Ms. Maniscalco wrote a letter to the

superintendent recommending that Respondent be placed in an

IAP program for the following school yea r. Sch. Bd. Ex. 27. The

letter reads as follows:

During her two years at Cypress Lake Middle

School she has received additional support

from administration, reading coach, select

faculty members and the staffing specialist.

Her struggles with correct co mpletion of ESE

documentation, instructional strategies, and

classroom management have prevented her from

being an effective teacher. She was

cooperative and always attempted to implement

what she learned. However, she was unable to

sustain and implement this knowledge in ESE

required documents, future lessons and her

teaching lacked depth and vigor.

Mrs. Miller's classes during the 2016/2017

school year was [sic] of great concern. As

evident by the documentation on PeopleSoft

and my personal notes, her classroom

management and lack of vigor was [sic] of

particular concern. Despite having classes

of no more than 13 students, Mrs. Miller was

unable to maintain classroom control

throughout the entire school year even with

the added support of an ESE parap rofessional.

Students were up and out of their seats, off

task, talking over her or simply ignoring

her. Often she was [missing text from

exhibit] interventions or she would make

comments such as "Please do your work. Stop

bothering the other students. I asked you to

sit down[,]" without follow through when

students did not change their behavior.

Mrs. Miller has struggled with the proper

completion of IEP paperwork, manifestation

processes and parent contact for the

documentation needed on ESE paperwo rk. This

is of great concern due to the legal

implications that could result.

Throughout the school year, Mrs. Miller was

always cooperative and understanding of our

concerns regarding her ineffectiveness as a

classroom teacher, continued errors on ESE

s tudents' paperwork, and ESE processes. She

was receptive to our suggestions and

assistance. However, in May of 2016, when I

notified her I was going to refer her to the

Intensive Assistance Program, she became

upset and stated I had no idea what pressure

was put on her.

For the sake of our students and their

learning, I respectfully request immediate

intervention with Mrs. Miller. She needs

additional help learning the pedagogical

processes of effective teaching. Pleading

with middle school age student s is highly

ineffective. Students need an orderly, safe

environment, where skills and concepts are

scaffold, differentiated, and rigorous.

Proper completion of ESE paperwork is

imperative as it relates to individual

students['] IEPs. I would like to dis cuss my

concerns further with you and answer any

questions you may have pertaining to this

request.

20. On August 2, 2016, the superintendent informed

Respondent by letter that he was accepting Ms. Maniscalco's

recommendation that she be placed in a Plan of Assistance. He

added that an IAP team would be formed immediately, and her union

representative was invited to accompany her to the meetings.

Sch. Bd. Ex. 1.

ii. The IAP P rocess U sed by Cypress Lake

21. A Cypress Lake IAP team was established con sisting of

the principal, the TALC representative, the district

administrator, the assistant principal, and the chief human

resources officer, Dr. Pruitt. An initial meeting was held on

September 12, 2016. At that meeting, the team reviewed

Respondent's areas of concern, identified areas requiring

improvement, and reviewed the IAP outline. The deficient areas

identified by the team included preparation of IEPs, classroom

teaching methods, and student engagement. The team was

"extremely specific" and "ve ry, very detailed" in identifying the

specific areas that would be addressed. The team agreed that

each member would formally observe Respondent two times during

the IAP process.

22. No written minutes of the orientation meeting were

prepared, as Ms. M aniscalco did not know at that time that

written minutes were required. Respondent contends that without

written minutes, there is no way to prove that she was told which

performance areas would be reviewed during the IAP process, or

even if the team memb ers understood the areas of concern. On

this issue, the undersigned has accepted the testimony of

Ms. Maniscalco and Dr. Pruitt that these areas were discussed in

detail at the orientation meeting. In fact, Ms. Maniscalco

testified that she could "g uarantee 100 percent that we talked

about IEPs and classroom management, and I would swear to that."

23. Additional team meetings were conducted on

September 26, October 17, October 31, November 14, and

December 12, 2016, and March 30, 2017. Resp ondent and her

representative attended all meetings. At no time during the

process did Respondent or her representative object to the

process, file a grievance with respect to a misapplication of the

process, or complain that she was not getting enough su pport.

24. The team provided Respondent with the opportunity to

observe other teachers, shared best practices, recommended

behavioral management techniques, gave advice on student

engagement strategies, and offered advice on managing and

completing IEPs. At each meeting, the team reviewed Respondent's

strengths, opportunities for growth, and suggestions for

improvement. The results of each member's observations also were

discussed. Although Respondent testified that during the process

she encountered a number of problems which prevented her from

adequately resolving her performance issues, she never raised

that subject with any team member. In fact, only once during the

entire IAP process did Respondent ask for assistance (through a

colleague, and not t he principal), and after doing so, she was

assigned a paraprofessional.

25. After the final team meeting on March 30, 2017, on

April 17, 2017, Dr. Pruitt informed Respondent by certified mail

that the IAP team "had determined that her performance was no t at

an acceptable level." Sch. Bd. Ex. 8. The letter noted that the

areas requiring improvement were planning; human development and

learning; learning environments; critical thinking; student

achievement and continuous improvement; and state, school, a nd

district requirements.

26. Dr. Pruitt believed that a new location and a new

administration could raise Respondent's level of proficiency.

Therefore, she recomm ended that Respondent "be placed at another

work location for the 2017/2018 school year a nd continue to

receive assistance." Id. This course of action is authorized by

the IAP Manual, which allows "continued assistance" for an

employee when deficiencies are not remediated during the IAP

process. Otherwise, given her lack of progress, Respon dent's

termination would be the only logical outcome. The letter added

that the second IAP process would begin approximately three weeks

after the beginning of the new school year. The recommendation

was accepted by the superintendent.

D. Royal Palm

2 7. On July 13, 2017, Respondent was notified by certified

mail that she was being reassigned to Royal Palm, a much smaller

school than Cypress Lake. Sch. Bd. Ex. 9. Unlike Cypress Lake,

which had a mix of mainstream students and ESE students, Royal

Palm 's enrollment was 100 percent exceptional students, none of

whom could function in a "gen ed setting." However, Dr. Pruitt

believed that Respondent would be a good match for the school

because it had no more than eight students in a classroom, and

she had an ESE background. Dr. Pruitt testified that it was the

"easiest teaching assignment [she] could find to help

[Respondent] be successful." Respondent was told that a new

period of performance probation would commence after the

beginning of the school ye ar 2017 - 2018.

28. When Respondent reported to duty in August 2017, the

principal, Mr. Moretti, welcomed her and told her, "You'll have a

ton of support here," which turned out to be true. He especially

was glad to have her on the faculty because he had no reading

teachers with ESE certification.

i. The Royal Palm IAP Process

29. On October 2, 2017, Dr. Pruitt assembled a new Royal

Palm IAP team comprised of the facilitator, Ms. Freeman;

principal, Mr. Moretti; assistant principal, Ms. Wilson; and

dist rict administrator, Ms. Taylor. None had ever been involved

in the IAP process. Mr. Moretti acknowledged that he did not

familiarize himself with the IAP process and instead relied on

Dr. Pruitt (a non - member) and Ms. Freeman, the facilitator, to

provide advice on how the process would work. Respondent and her

union representative, Dr. Fazzone, also attended the meetings,

which were overseen by Ms. Freeman.

30. An initial team meeting was conducted the same day.

Dr. Pruitt, who attended the first meeti ng only, told the team

that the focus areas for improvement consisted of completing

IEPs, progress reports, and interims; classroom management

issues; and active engagement of students. Sch. Bd. Ex. 28.

The areas of concern were the same as those identi fied in her

April 19, 2017, letter and tracked the performance areas that

were addressed unsuccessfully at Cypress Lake.

31. During the meeting, the team was introduced to the

IAP process and given a binder with the IAP outline. Dates for

formal obse rvations were also set, including one the following

day by Ms. Taylor, the district administrator.

32. Notably, Ms. Taylor pointed out that the team knew that

this was Respondent's second time in the process, and they

"wanted to provide all the resource s that we could for her,

ensuring that she had the tools that she needed to, also looking

at how she was utilizing the information, based on the daily

teaching in her classroom, and how that was going to be best used

outside of administrative assistance, t hrough the IAP process."

33. After the orientation meeting, Mr. Moretti decided to

include Ms. Allbritten, the instructional coach for the school

district, in the IAP process. He chose her because she would be

performing formal observations on Responde nt in lesson

development, and she could give Respondent first - hand feedback.

Respondent contends the inclusion of Ms. Allbritten at team

meetings "contaminat[ed] the clearly defined process" and

violated the "confidential nature of the process." This

con tention is rejected.

34. Additional IAP team meetings were conducted on

October 30, November 20, and December 5, 2017, and January 22,

February 5, February 26, and April 9, 2018.

35. During the first few months of the process, the team

noticed "a gre at deal of improvement" on the part of Respondent.

Mr. Moretti was "very pleased" with her progress. By that time,

the team had helped her prepare lesson plans, restructured the

physical classroom, reviewed IEPs, allowed her to visit other

classrooms, a nd assisted her in revising her teaching strategies

for different students. When asked at the December 5, 2017,

meeting if her caseload was manageable, Respondent answered

"yes."

36. Despite the early improvement, a formal observation by

Ms. Taylor on January 22, 2018, showed otherwise. Only one

student was in the classroom on time and two more came in late.

Their behavior was "terrible," and one student was not engaged

the entire period.

37. During the process, Ms. Taylor attempted to provide

Respon dent with additional training on the Language Live Academic

Plan (Language Live), a reader intervention program for

struggling students. The program was utilized as the primary

teaching tool in Respondent's classroom. Although the program

was used at oth er schools in the district, this was the first

year that it was used at Royal Palm. In an effort to improve

Respondent's use of the tool, Ms. Taylor arranged for her to

visit Gulf Middle School to observe the program being utilized by

another teacher. Ms . Taylor reported that Respondent was not

engaged and appeared to be disinterested in learning how to

utilize the program. Also, even though Language Live was

Respondent's primary teaching tool, the team learned that

Respondent was not even logging into t he program and had gone a

significant time period without utilizing and/or accessing it as

an instructional tool. Sch. Bd. Ex. 14.

38. At the team meeting on February 5, 2018, it was noted

that Respondent's students were well below the district

expecta tions of three activities and 100 minutes per week online;

the most time spent online by any student was 78 minutes by one

and the student was a self - motivated gifted student; there were

numerous students who had not logged into the program; and

Respondent did not log into the program for the week of

January 29 through February 2, 2018. Sch. Bd. Ex. 14.

39. According to Ms. Allbritten, who provided Respondent

with extensive assistance and training, Respondent's failure to

utilize the Language Live pr ogram had a detrimental effect on the

students at Royal Palm who were transitioning back into g eneral

education classes. She added that Respondent was not always

receptive to her assistance and training.

40. The reading coach, Ms. Meltzer, was asked to attend the

February 5, 2018, meeting so she could present the results of the

Language Live data for the team to examine. The data showed

"very little to no progress for the majority of the kids" in

Respondent's classes. The undersigned has rejected Respo ndent's

contention that the inclusion of Ms. Meltzer for the meeting

tainted the process.

41. For a teacher to actively engage the students, lesson

plans are required. This is a basic requirement for a teacher.

At the February 5, 2018, meeting, the te am learned that no lesson

plans had been turned in by Respondent since November 13, 2017.

In fact, she had prepared only four out of 16 to 18 that were

due. In response, Respondent contended that all were prepared,

but she needed to "adjust" them. Howev er, later on, she turned

in one lesson plan, with multiple dates on that plan, which was

intended to satisfy the requirement for the next six or seven

weeks.

42. During the February 26, 2018, meeting, the team noted

that the following interventions on beh alf of Respondent had been

performed: (a) she visited Gulf Middle School to observe a

reading class using the Language Live program; (b) steps were

taken to ensure Respondent's classroom had all necessary

materials; (c) Respondent's lesson plans and templ ate were

designed; (d) she was provided with the Language Live Academic

Plan and all necessary material; (e) she was given assistance in

preparing IEPs and attending IEP meetings; (f) a team member sat

with her during the first IEP meeting so she would be familiar

with the process; (g) a Language Live training session was

established every other week for Royal Palm reading teachers; and

(h) data was examined to ascertain student success and areas of

improvement. Sch. Bd. Ex. 14.

43. At the meeting on Fe bruary 26, 2018, Respondent was

directed to have all lesson plans for the last half of November,

December, January, February, and March prepared and submitted

before the next meeting. Also, it was noted that Respondent's

IEPs were not always prepared for parent meetings, and this

placed the school's receipt of federal funds in jeopardy.

44. During the meeting, Dr. Fazzone, Respondent's union

representative, questioned why the reading coach was in the room.

He was told that Ms. Meltzer is Respondent's i mmediate supervisor

and an instructional coach in reading, and she could provide

feedback regarding how effective Respondent was in using the

Language Live program to teach reading. This was one of the very

few criticisms made by Respondent during the ent ire process.

Dr. Fazzone testified that he did not know he could grieve a part

of the process, or otherwise object, but never inquired if he had

such a right.

45. A final team meeting was conducted on April 9, 2018.

Principal Moretti was unable to physically attend due to medical

issues, but he spoke with Ms. Freeman regarding the team's

concerns. Also, he discussed Respondent's progress in numerous

conversations with team members throughout the school year.

46. The team reviewed the minutes of the prior meeting and

the performance deficiencies that were to be corrected. Although

Respondent had made progress in some areas during the early part

of the process, the members noted that her lesson plans were

still incomplete, a "behavior" plan was in adequate, and based on

a number of formal observations, there was a "lack of

instruction" in her classroom. Respondent was told that the

intervention program would be ended. Mr. Moretti testified that

even though it would "make [his] life a whole lot eas ier" if he

could keep a certified ESE reading teacher, it was in the

school's best interest to find another teacher.

47. At the end of the meeting, when asked if she had been

given support during the preceding months, Respondent answered,

"Absolutely," an d said the school had a "wonderful support

system."

48. The team consensus was that Respondent had not

corrected her deficiencies. However, the final recommendation

was made by Dr. Pruitt. On May 1, 2018, Dr. Pruitt informed

Respondent by certified ma il that the team had recommended that

her contract not be renewed at the close of the school year.

Resp. Ex. 4. On May 7, 2018, Dr. Pruitt sent a second letter,

correcting the first letter, in which she advised Respondent that

her performance was not at an acceptable standard and that she

(Dr. Pruitt) would be recommending that the superintendent

terminate her employment. Sch. Bd. Ex. 12. Respondent contends

that the IAP Manual was violated because Dr. Pruitt made her

recommendation without input fr om the team. But the team

discussed the results of the process amongst themselves and with

Mr. Moretti, who then conveyed his thoughts to Dr. Pruitt.

49. Dr. Pruitt's recommendation was accepted by the

superintendent. On May 29, 2018, a Petition for Ter mination

informed Respondent that the matter of her termination would be

taken up by the School Board on June 26, 2018. As grounds for

termination, the Petition for Termination alleged that Respondent

was incompetent within the meaning of section 1012.33, as further

defined by Florida Administrative Code Rule 6A - 5.056(3), and she

failed to adequately perform her educational duties. Respondent

has been suspended without pay since that date.

E . Other Procedural Objections Raised by Respondent

50. Beside t he procedural issues addressed in the prior

findings, Respondent contends that the School Board's failure to

strictly follow the statute and IAP process resulted in "multiple

errors" that render the process void. Notably, during the

process itself, neithe r Respondent nor her union representative

filed a grievance or otherwise contended that the teams had

violated, misapplied, or misinterpreted any provision. And they

have not complained that either school failed to provide adequate

assistance to Responden t to correct the deficiencies.

51. Respondent points out that even though the Manual (but

not the statute) provides that team meetings be held "biweekly,"

and the process be completed within 90 days, the Cypress Lake

process began in September 2016 and ended in March 2017, while

the Royal Palm process stretched out from October 2017 until

April 2018. Also, meetings were staggered and not conducted on a

biweekly basis.

52. Ms. Pruitt responded that the requirement for biweekly

meetings and a 90 - day pr obation period is only a guide, and the

pri mary goal of the process is to assist the employee, rather

than meet hard and fast deadlines. She testified that many

factors cause these requirements to be adjusted. For example,

Respondent had "attendance issu es" and was not available at all

times, a disciplinary issue required that she be reassigned to a

different department for several weeks, there are intervening

school holidays and statewide testing, team members may be absent

or tied up with other school d uties, and there are days when

formal observations cannot be conducted. The overall goal is to

help the teacher, rather than forcing a meeting every two weeks

and ending the process based on an arbitrary deadline, regardless

of other circumstances. For t he same reasons, a final evaluation

cannot always be made within 14 days after the final meeting.

53. In the same vein, Respondent contends that the lengthy

process, especially by the spring of 2018, wore her down to the

point she gave up. But here the w hole purpose of allowing the

process to continue as it did was to give Respondent more

assistance and time to show progress.

54. Respondent contends that no evidence was presented

regarding the performance of the students during the IAP process,

as requ ired by section 1012.34(3). At the meeting on February 5,

2018, however, Language Live data reviewed by the team showed

that Respondent's students were well below the district

expectations of three activities and 100 minutes per week online.

Formal obser vations reflected also that "numerous" students did

not log into Language Live, which tracks data to measure a

student's progress. Ms. Allbritten testified that Respondent's

failure to use the program had a "detrimental effect" on her

students who were tr ansitioning back into general education

classes. Finally, at the last Royal Palm meeting, it was noted

that the students simply were not receiving "instruction."

55. Respondent contends she was never fully informed at the

outset regarding which performan ce areas would be reviewed, and

they changed throughout the Royal Palm IAP process leaving her to

chase a moving target. The only mention of this concern was at

the February 26, 2018, meeting, when her union representative,

Dr. Fazzone, asked what the goa ls of the team were, the initial

reason for the IAP, and the plan of action that was given to the

team at the beginning of the process. In response to those

questions, Ms. Freeman reviewed again the process and the

expectations with the team and reaffirme d that these were exactly

what the team was doing. At no other time during the year did

Respondent or her representative raise the issue. The accepted

testimony of School Board witnesses confirms that Respondent was

apprised of performance issues at ever y step in the process.

56. Admittedly, there were minor deviations from the

Manual. However, the two teams substantially conformed to the

process. To the extent there were deviations, they did not

affect the overriding goal of making Respondent a better teacher

and correcting the performance deficiencies noted by the

evaluators. While Respondent suggests otherwise, the

overwhelming evidence shows that both schools devoted extensive

manpower and resources in an effort to make her successful.

CONCLUSIONS OF LAW

57. Respondent is a classroom teacher and her employment

with the School Board is governed by an instructional staff

contract. §§ 1012.01(2)(a) and 1012.33, Fla. Stat. The terms of

her employment also are governed by the TALC Agreement.

58. A teacher with a professional service contract "can

only be terminated for just cause pursuant to section 1012.33,

Florida Statutes, or based upon uncorrected performance

de ficiencies pursuant to section 1012.34, Florida Statutes."

Orange Cnty. Sch. Bd. v. Rachman , 87 So. 3d 48, 49 n.1 (Fla. 5th

DCA 2012).

59. The School Board bears the burden of proving by a

preponderance of the evidence that it has just cause to terminate

Respondent for the reasons alleged in the Petition for

Termination. Cropsey v. Sc h . Bd. of Manatee C nty. , 19 So. 3d

351, 355 (Fla. 2d DCA 2009).

60. Pursuant to section 1012.33(1) and (6)(a), the School

Board may dismiss Respondent during the term of her employment

contract only for "just cause."

61. Pursuant to section 1001.02(1 ), the State Board of

Education has adopted rule 6A - 5.056 setting forth instances of

"just cause" to suspend or dismiss specified school personnel.

The rule defines "just cause" as "cause that is legally

sufficient" and provides the following relevant def inition:

"Just cause" 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 is

set forth in section 1012.33 and 1012.335,

F.S. In fulfillment of these la ws, the basis

for each such charge is hereby defined:

* * *

(3) "Incompetency" means the inability,

failure or lack of fitness to discharge the

required duty as a result of inefficiency or

incapacity.

(a) "Inefficiency" means one o r more of the

following:

1. Failure 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 pare nts;

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.

(b) "Incapacity" means one or more of the

following:

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.

62. Based on the foregoing findings of fact, it is

concluded that just cause exists to terminate Respondent as a

teacher on the ground she is incompetent, that is, she failed to

discharge her duties as a teacher because of inefficiency. The

primary duty of a teacher is to work diligently and faithfully to

help students meet or exceed annua l learning goals, to meet state

and local achievement requirements, and in this case, to master

the skills required to transition from ESE to general education

classes. § 1012.53(1), Fla. Stat. The evidence here establishes

that Respondent was unable to help her students meet learning

goals due to inefficiency. This was caused in part by a failure

to communicate and relate to students, and a failure to

commu nicate appropriately with and relate to colleagues,

administrators, and parents. Despite the Scho ol Board's best

efforts during school years 2016 - 2017 and 2017 - 2018, there was no

marked improvement of her teaching skills. Her performance as a

teacher continued to be deficient, thus justifying the

termination of her employment by the School Board.

RE COMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Lee County School Board enter a final

order terminating Respondent 's employment as a teacher .

DONE AND ENTERED this 2 2nd day of March , 2019 , in

Tallaha ssee, Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 68 47

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 2nd day of March , 2019 .

COPIES FURNISHED:

Brian Anthony Williams, Esquire

The School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 3396 6 - 1012

(eServed)

Robert J. Coleman, Esquire

Coleman & Coleman

Post Office Box 2089

Fort Myers, Florida 33902 - 2089

(eServed)

Gregory Adkins, Superintendent

Lee County School Board

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

Richard Corcoran , Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines St reet

Tallahassee, Florida 32399 - 0400

(eServed)

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 file d with the agency that

will issue the Final Order in this case.