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Yerks v. School Board of Broward County

Florida Court of Appeals, Fourth District

May 10, 2017

STEVEN YERKS, Appellant,

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the State of Florida, Division of Administrative Hearings; Robert E. Meale, Administrative Judge; L.T. Case No. 14-3012TTS.

          Mark F. Kelly of Mark F. Kelly, P.A., Tampa, for appellant.

          Charles T. Whitelock of Charles T. Whitelock, P.A., Fort Lauderdale, for appellee.

          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 assistant 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 appellant 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 Marzano 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 datamarks 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 the observations were tainted, the ALJ undertook a painstaking review of each observation and discussed his findings at length in a 129-page order. ...

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