Yerks v. School Board of Broward County

219 So. 3d 844, 2017 WL 1929703, 2017 Fla. App. LEXIS 6575
CourtDistrict Court of Appeal of Florida
DecidedMay 10, 2017
DocketNo. 4D15-4449
StatusPublished
Cited by3 cases

This text of 219 So. 3d 844 (Yerks v. School Board of Broward County) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yerks v. School Board of Broward County, 219 So. 3d 844, 2017 WL 1929703, 2017 Fla. App. LEXIS 6575 (Fla. Ct. App. 2017).

Opinions

Taylor, J.

Appellant, Steven Yerks, a teacher who was discharged primarily for failing to correct alleged performance deficiencies, appeals a final administrative order in which the Broward County School Board rejected certain factual findings of the Administrative Law Judge (“ALJ”) and rejected the ALJ’s recommendation that appellant be reinstated. We reverse.

This dispute arises out of appellant’s performance as a mathematics teacher at Boyd Anderson High School during the 2013-14 school year. At all relevant times, the School Board used a performance evaluation system known as iObservation, which is based on the methods of Dr. Robert Marzano.

The iObservation form consists of 60 strategies or criteria listed in four domains—classroom strategies, planning and preparation, reflecting on teaching, and professionalism. Observers score the criteria in the domains by issuing the following “datamarks” to indicate the teacher's level of performance—innovating (4 points), applying (3 points), developing (2.5 points), beginning (2 points), and not using (1 point).

In February 2014, appellant was placed on a Performance Development Plan. There were 18 observations of appellant’s classroom performance during the school year. Most of the observations were conducted by either the principal or the assis[846]*846tant principal. Over 100 “datamarks” concerning appellant’s teaching performance were entered into the iObservation system during the observations. Appellant’s final score was unsatisfactory.

In June 2014, the Broward County Superintendent of Schools filed an Administrative Complaint recommending that áppellant be terminated from his employment with the school district. The case proceeded to a formal administrative hearing.

At the three-day hearing, the ALJ heard testimony from 16 witnesses and admitted multiple exhibits into evidence, including the 102 datamarks recorded in the performance evaluation system. Several of the Superintendent’s witnesses testified about 'appellant’s alleged misconduct, but the ALJ found that much of this testimony was not credible.1

The principal and assistant principal testified that appellant’s classroom performance was unsatisfactory based on their observations. No other witness conducted, or was'credentialed to conduct, an observation of appellant’s teaching under the Mar-zano method.

Appellant did, however, present the testimony of a liaison between the Teachers Union and the school district, who testified ■that she had concerns about the procedural fairness of the observations of appellant’s teaching. Although she was not a credentialed Marzano observer, she received training concerning the Marzano method and testified that some of the data-marks appellant received were contradictory to that training. For example, appellant received multiple “not.using” datamarks that failed to contain any feedback on how to improve. Likewise, for one observation, there was evidence that appellant had posted a learning goal, but appellant still received a “not using” datamark, which was contradictory to the Marzano evaluation system.

Appellant, who was also trained in the Marzano method but was not a credentialed observer, testified in his own defense and criticized how the observations were scored.2

The ALJ issued a lengthy recommended order, finding that the Superintendent failed to prove any of the charges against appellant. The main focus of the recommended order was on whether the Superintendent proved the allegations regarding appellant’s failure to correct performance deficiencies. On this issue, the ALJ found that the observations conducted by the principal and assistant principal “were tainted by incompetence, carelessness, and confirmation bias.”

The ALJ discarded or revised various datamarks on the following grounds: (1) the observers misapplied criteria requirements; (2) the observers disproportionately observed certain criteria; and (3) certain datamarks were not proven by the greater weight of the evidence.

Contrary to the dissent’s suggestion that the ALJ’s decision was based on nothing more than a conclusory impression that [847]*847the observations were tainted, the ALJ undertook a painstaking review of each observation and discussed his findings at length in a 129-page, order. The following are but a few examples of the ALJ’s criticisms of the datamarks;

• The iObservation form requires observers to check items of “Teacher Evidence” that are present during an observation of a particular criterion. However, in the datamarks issued through February 2014, the assistant principal would often check items that he believed were missing rather than items that were present, which created an unreasonable likelihood of an unreliable observation. The ALJ thus observed: “For particularly inattentive or inept observers, checking what is missing may be intuitive to support relatively low datamarks for items of Teacher Evidence that are clearly illustrative, even though the absence of an illustrative item logically does not preclude a relatively high data-mark, if other evidence of compliance is present.”
• With respect to the datamarks issued by the assistant principal for domains 2 through 4, the ALJ found that there was “no evidence of any exchange of information or examination of planning materials,” and that “[t]he failure to inform these determinations in the manner provided by the iObservation form undermines the reliability of all of the datamarks for these criteria.”
• The ALJ found that there was an inconsistency among certain datamarks entered by the assistant principal as to the same criteria over the same time span, explaining that the datamarks “collectively make no sense” and should be discarded.
• With respect to a datamark of “hot using”' that appellant received for the criterion of “promoting positive interactions. with colleagues,” the ALJ found that the comment corresponding to that datamark reflected the assistant principal’s opinion of appellant’s behavior at a recent teacher meeting and nothing more. The criterion required an analysis of the extent to which a teacher interacts with other teachers to promote learning, which was not done. Thus, the ALJ discarded the datamark to avoid the unreasonable likelihood of an unreliable evaluation.
• The ALJ noted that appellant received a “beginning” datamark for a criterion concerning “seeking mentorship” based on the assistant principal’s comment that appellant did not show appreciation for the efforts- and assistance of his academic coaches, even though gratitude was not an element of the criterion at issue.

After discarding and revising various da-tamarks, the ALJ recalculated appellant’s score and determined that his performance was in the effective range.

The ALJ determined that, .the Superintendent had “failed to prove any performance deficiency for the 2013-14 school year.” The ALJ found -that “[t]he evidence affirmatively proves that [appellant] worked faithfully and diligently for his students.” The ALJ concluded that “[r]egardless of whether the observation data were rejected in their entirety for these reasons or, as here, discarded and revised after analysis of each datamark, there is no performance deficiency to correct.” Accordingly, the ALJ recommended that the School Board.

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Cite This Page — Counsel Stack

Bluebook (online)
219 So. 3d 844, 2017 WL 1929703, 2017 Fla. App. LEXIS 6575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yerks-v-school-board-of-broward-county-fladistctapp-2017.