STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL )

BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6983

)

CHERYL MCDONOUGH )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on April 27-28, 1995, in Largo, Florida.

APPEARANCES

For Petitioner: Keith B. Martin, Esquire

Pinellas County School Board Post Office Box 2942

Largo, Florida 34649

For Respondent: Marguerite Robinson, Esquire

Kelly & McKee

Post Office Box 75638 Tampa, Florida 33675

STATEMENT OF THE ISSUE

Whether just cause exists for the proposed disciplinary action against the Respondent.

PRELIMINARY STATEMENT

Cheryl McDonough is employed as a teacher by the School Board of Pinellas County. By letter dated November 7, 1994, Ms. McDonough was notified that the superintendent would recommend to the school board that Ms. McDonough be dismissed from employment for activities occurring within her classroom and for other reasons set forth in the letter.

The letter notified Ms. McDonough of her right to a hearing. She requested a formal hearing and the matter was referred to the Division of Administrative Hearings for further proceedings.

At the hearing, the School Board presented the testimony of 18 witnesses and had exhibits numbered 1-9 admitted into evidence. The Respondent presented the testimony of 11 witnesses, testified on her own behalf, and had exhibits numbered 1-24 admitted into evidence.

A transcript of the hearing was filed. Both parties filed proposed recommended orders. Proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, Cheryl McDonough (Respondent) was employed by the Pinellas County School Board (Petitioner) under a professional services contract.

   
   

2. The Respondent was initially employed as a teacher by the Petitioner in 1987.

   
   

3. On December 11, 1989, the Respondent received a written reprimand from the Assistant Principal at Northeast High School for using poor judgement by displaying anger when dealing with inappropriate student behavior. The Respondent denied the behavior, but waived her right to challenge the allegation.

   
   

4. The Respondent taught at Northeast High School until budgetary considerations led to her transfer to Osceola High School.

   
   

5. On January 13, 1992, the Respondent received a written reprimand for using poor judgement by displaying anger and using vulgar language when dealing with inappropriate student behavior at Osceola High School. The reprimand was issued by the School District Director of Personnel Services. The Respondent denied the behavior, but waived her right to challenge the allegation.

   
   

6. The Respondent taught at Osceola High School until her position was eliminated for fiscal reasons.

   
   

7. On February 14, 1994, the Respondent received a written conference summary from Joann Andrews, Principal at Azalea Middle School, where she had become employed. The summary notes that alcohol had been detected on the Respondent's breath during school hours. The Respondent denied the allegation.

   
   

8. On April 20, 1994, the Respondent received a written school memorandum from the Assistant Principal at Azalea Middle School for smoking in an inappropriate area on school property.

   
   

9. In the summer of 1994, the Respondent was transferred to the district service center where she worked until gaining employment at Lakewood High School in the fall of 1994.

   
   

10. By letter from the Superintendent of Pinellas County Schools dated July 7, 1994, the Respondent was advised that the superintendent would recommend to the School Board that the Respondent be suspended without pay for ten days. The basis for the recommendation were allegations that the Respondent made disparaging remarks to a student and his mother in front of other students, that the Respondent had the odor of alcohol on her breath, and that the Respondent made derogatory remarks about another teacher to other students and had attempted to disrupt the other teacher's class.

11. On September 13, 1994, the School Board issued a Final Order suspending the Respondent without pay for five days based on the allegations set forth in the July 7 letter. The Final Order was issued pursuant to a settlement agreement reached by the parties.

    
    

12. During the 1994-1995 school term, the Respondent was employed as a teacher at Lakewood High School.

    
    

13. During a Lakewood faculty meeting on August 23, 1994, the smell of alcohol was detected on the Respondent's breath.

    
    

14. During a Lakewood "open house" in September, 1994, the smell of alcohol was detected on the Respondent's breath.

    
    

15. During the first semester of the 1994-1995 school term, several students smelled the odor of alcohol on the Respondent's breath.

    
    

16. During the first semester of the 1994-1995 school term, the Respondent used vulgar language including "damn," "hell," "shit," "bitch," and "fuck" in the classroom and within the hearing range of students.

    
    

17. During the first semester of the 1994-1995 school term, the Respondent used demeaning language towards students in her classroom, calling them "brats" and "dumb," and stating "you are the worst class" and "you will never amount to anything."

    
    

18. The Respondent told her sixth period class that she would kill them if she thought she could "get away with it."

    
    

19. On more than one occasion, the Respondent became frustrated by the class behavior. She would give the class a "work assignment" and would refuse to teach. There is no credible evidence that the "work assignments" were part of any prepared teaching plan or were otherwise utilized as instructional resources.

    
    

20. During the first semester of the 1994-1995 school term, the Respondent physically separated her fourth period class into two groups which she identified as "learners" and "non-learners." A row of empty desks was used to divide the students. During this episode, the Respondent refused to teach the group she called "non-learners."

    
    

21. After receiving complaints from students about the division, an official at the school visited the Respondent's class and directed her to reunite the class.

    
    

22. By letter from the Superintendent of Pinellas County Schools dated November 7, 1994, the Respondent was advised that the superintendent would recommend to the School Board that the Respondent be dismissed. The basis for the recommendation were allegations as follows: the Respondent used profanity and demeaning language towards students on numerous occasions; the Respondent had alcohol on her breath while at school on two occasions; the Respondent stated to her sixth period class that she would kill them all if she could get away with it; and that the Respondent separated students into two groups within the classroom setting and taught only half the class.

    
    

23. The Respondent requested a formal administrative hearing which is the basis for this Recommended Order.

24. At the hearing, the Petitioner's expert witnesses opined that the allegations, if established to be true, were of sufficient seriousness to impair her effectiveness as a teacher.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

26. The burden is on the Petitioner to establish by a preponderance of evidence that the actions alleged are true and constitute just cause for termination from employment. Allen v. Dade County School Board, 571 So.2d 568 (Fla. 3rd DCA 1990). The burden has been met.

    
    

27. Section 231.36(1)(a), Florida Statutes, provides that a member of an instructional staff employed under a professional services contract may be dismissed during the term of the contract only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude."

    
    

28. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, Florida Administrative Code, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, Florida Administrative Code, which is so serious as to impair the individual's effectiveness in the school system. Rule 6B-4.009(3), Florida Administrative Code.

    
    

29. The evidence establishes that just cause exists for the termination of the Respondent's employment. The Respondent lacked control of her classroom, used demeaning and profane language towards students, and refused to teach her classes. The odor of alcohol was also detected on the Respondent's breath while on school grounds. The Respondent has previously been warned about similar behaviors. Assistance in developing classroom management skills has been provided to her but with little apparent improvement.

    
    

30. The Respondent denied using alcohol on the dates when the Petitioner alleged that the smell of alcohol was detected on her breath. The Respondent asserted that medication prescribed for her prohibited the use of alcohol. The Respondent asserted that the smell was flea spray which she applied to her hands and then rubbed into the fur of her cats. The denial is not credible.

    
    

31. The Respondent also denied using profanity in the classroom, other than to direct students not to say certain words, and denied making demeaning statements to students. Her testimony is contrary to numerous witnesses and is not credible.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Pinellas County School Board enter a Final Order terminating the employment of Cheryl McDonough.

DONE and RECOMMENDED this 20th day of June, 1995, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6983

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

10. Rejected, correct year is 1994.

Respondent

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

1. Rejected as to use of medication. The greater weight of credible and persuasive evidence fails to establish that the Respondent took the medication at the times when the odor of alcohol was detected on her breath.

2. Immaterial. The evidence fails to establish that the students in the classes taught by the Respondent are responsible for her behavior therein.

6-11. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein.

14. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein.

15-16. Rejected, contrary to the greater weight of credible and persuasive evidence.

1. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein.

2. Rejected. The Respondent does not recall making the statement so her explanation of her intent is speculative. As to the cited testimony of Ms. Hanes, it is immaterial because the statement is not "in and of itself" the sole event warranting termination.

19-21. Rejected, contrary to the greater weight of credible and persuasive evidence.

1. Rejected, immaterial, no related allegation.

2. Rejected, immaterial

3. Rejected, immaterial. Classroom management "techniques" are not the sole cause warranting termination.

COPIES FURNISHED:

Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County

Post Office Box 2942 Largo, Florida 34649

Keith B. Martin, Esquire Pinellas County School Board Post Office Box 2942

Largo, Florida 34649

Marguerite Robinson, Esquire Kelly & McKee

Post Office Box 75638 Tampa, Florida 33675

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA,

Petitioner,

vs. CASE NO. 94-6983

CHERYL McDONOUGH,

Respondent.

/

FINAL ORDER

WHEREAS, by letter dated November , 1994, the superintendent of Schools recommended to The School Board of Pinellas County, Florida, that CHERYL McDONOUGH, a Teacher at Lakewood High School, be dismissed from her employment which letter contains the reasons there for and

WHEREAS, said CHERYL McDONOUGH timely requested an administrative hearing and the matter was referred to the Division of Administrative Hearings and

WHEREAS, the hearing was held on April 2 & 28, 1995 before Hearing Officer William F. Quattlebaum and

WHEREAS, the Hearing Officer's Recommended Order together with the Petitioner's proposed Findings of Fact, Conclusions of Law, and Supporting Memorandum, the Respondent's proposed Findings of Fact and Conclusions of Law Together with proposed Final Order and the Respondent's Exceptions to the Hearing Officer's Recommended Order have been carefully reviewed, it is hereby

ORDERED AND ADJUDGED that CHERYL McDONOUGH did in fact violate school board policy 5.31(1)(n) by using profanity and demeaning language to students on numerous occasions, stating to her sixth period class that if she could get away with it she would kill them all, or words to that effect, refusing to teach some students while physically separating the students in her class into two groups and identifying them as "learners" and "non-learners" and only teaching one-half of the class. The penalty for violation of this section is caution - dismissal. Also, MS. McDONOUGH violated school board policy 5.31(1)(f) by having alcohol on her breath while at school on two occasions. The penalty for violation of this section is reprimand - dismissal. It is further

ORDERED AND ADJUDGED that the Hearing Officer's Recommended Order is hereby accepted and adopted and incorporated herein in its entirety, and it is further

ORDERED AND ADJUDGED that Respondent's Exception to paragraph 13 of the Hearing Officer's Recommended Order is denied in that there was substantial competent evidence to support the finding that the smell of alcohol was detected one the Respondent's breath at a Lakewood High School faculty meeting on August 23, 1994. (Transcript of Proceedings, Testimony of Walter Hall, Page 69, Lines 15-25 and Page 0, Line 1; Testimony of E. Lou Perry, Page 140, Lines 18- 25.)(Petitioner's Exhibit No. 1, Deposition of Martin Albert, page 8, Lines 1- 2O.) It is further

ORDERED AND ADJUDGED that Respondent's Exception to paragraph 14 of the Hearing Officer's recommended Order is denied in that there was substantial competent evidence that during a Lakewood High School open house in September, 1994 the smell of alcohol was detected on the Respondent's breath. (Transcript of proceedings, Testimony of Deborah Davis, page 109, Lines 1-12 and Testimony of Jessica Tonzola, page 52, Line 1a-Page 54, Line 5.) It is further

ORDERED AND ADJUDGED that Respondent's exception to paragraph 15 of the Hearing Officer's Recommended Order is denied in that there was substantial competent evidence to support the finding that during the first semester of the 1994-95 school term several student smelled the odor of alcohol on the Respondent's breath. (Transcript of proceedings, Testimony of Priscilla Johnson, Page 10, Lines 8-13, Testimony of Barbara Myrthil, Page 65, Lines 12- 18, Testimony of Milford Strong, Page 45, Lines 14-25, Testimony of Lennary Brown, Page 125, Lines 7-25.) It is further

ORDERED AND ADJUDGED that Respondent's exception to paragraph 29 of the Hearing Officer's Recommended Order is denied in that there was substantial competent evidence to support the conclusion of law that the odor of alcohol was detected on the Respondent's breath while on school grounds. (Transcript of proceedings, Testimony of Walter Hall, Page 69, Lines 15-25 and Page 70, Line 1 and Testimony of E. Lou Perry, Page 140, Lines 18-25; petitioner's Exhibit No.

1, Deposition of Martin Albert, Page 8, Lines 17-20; Transcript of proceedings, Testimony of Deborah Davis, page 109, Lines 1-12 and Testimony of Jessica Tonzola, Page 52, Line 17 and page 54, Line 5; transcript of proceedings, Testimony of Priscilia Johnson, Page 10, Lines 8-13, Testimony of Barbara Myrthil, Page 65, Lines 12-18, Testimony of Milford Strong, Page 45, Lines 14-25 and Testimony of Lennary Brown, Page 125, Lines 7-25.) It is further

ORDERED AND ADJUDGED that Respondent's exception to paragraph 24 of the Hearing Officer's Recommended Order is denied in that the petitioner did meet its burden of establishing by a preponderance of the evidence that the actions alleged are true and constitute just cause for termination of the Respondent's employment. It is further

ORDERED AND ADJUDGED that Respondent's exception to paragraph 30 of the Hearing Officer's Recommended Order is denied in that it is the Hearing Officer's role in an administrative hearing to determine the credibility of witnesses testimony. The Hearing Officer in this case determined the Respondent's testimony that she had not been using alcohol on the dates alleged was not credible. [Paragraph 30 of the Hearing Officer's Recommended Order, Cenac v. Florida State Board of Accountancy, 399 So.2d 1013 (1st DCA 1981). It is further

ORDERED AND ADJUDGED that CHERYL McDONOUGH is hereby dismissed from her employment with the PINELLAS COUNTY SCHOOL BOARD, effective July 27, 1995. In imposing dismissal, the school board has considered aggravating factor5 (a), (b), (d), (f), and (p) from School Board policy 5.31(3) It is further

ORDERED AND ADJUDGED that CHERYL McDONOUGH is hereby notified of her right to appeal this Order to the Second District Court of Appeals in Lakeland, Florida, by filing notice of intent to do so with the Clerk of the Court and on Keith B. Martin, Assistant school Board Attorney, within thirty (30) days of this date.

DATED: July 26, 1995

THE SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA

By: Barb J. Corbett

Chairman

Attest: Ex-officio Secretary

Docket for Case No: 94-006983

Orders for Case No: 94-006983