STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD,

Petitioner,

vs.

SYDRIA N. CARTER,

Respondent.

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) Case No. 00-3919

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RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on March 5, 2001, at the Jacksonville City Hall, Jacksonville, Florida, and conducted by Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ernst D. Mueller, Esquire

Office of the General Counsel City of Jacksonville

117 West Duval Street, Suite 480 Jacksonville, Florida 32202

For Respondent: David A. Hertz, Esquire

Duval Teachers United 1601 Atlantic Boulevard

Jacksonville, Florida 32207 STATEMENT OF THE ISSUE

Should Respondent be discharged or otherwise disciplined for violations of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (11941), as amended.

PRELIMINARY STATEMENT

Petitioner, Duval County School Board, filed an amended notice of termination against its employee, Respondent Sydria N. Carter, on September 11, 2000. Subsequent to Ms. Carter's demand for a hearing, the case was transmitted to the Division on September 21, 2000.

Petitioner presented the testimony of six witnesses at the hearing and presented the testimony of Noreen Tuder by video deposition. Petitioner's Exhibits 1-9 were admitted into evidence.

Respondent called Leroy Starling as a witness and testified on her own behalf. Respondent's Exhibits 1-4 were admitted into evidence.

A transcript was filed with the Division of Administrative Hearings on April 9, 2001, and both parties timely submitted Proposed Recommended Orders which were considered by the Administrative Law Judge in the preparation of the Recommended

Order.

FINDINGS OF FACT

1. Respondent Sydria Carter holds Florida Educator's Certificate number 403413, valid through June 30, 2002, which authorizes her to teach early childhood education and elementary education. She holds a bachelor's degree and a master's degree from Jacksonville University.

2. Ms. Carter was employed by the Duval County School Board as a tenured teacher during all times pertinent. She has been a teacher for about 24 years. Since the 1997-98 school year, she has taught pre-kindergarten at Wesconnett Elementary School. Her pre-kindergarten class for the 2000-01 school year was populated by 20 students.

3. Michael Fleck (Michael), on August 15, 2000, was a four-year-old-boy. August 15, 2000, was Michael's first day in school. He was assigned to Ms. Carter's class at Wesconnett.

4. Michael is the son of Teresa Fleck. On August 15, 2000, she and Michael went together to orientation in the school cafeteria. When orientation was completed, Michael and the other children in his class departed the cafeteria with

   Ms. Carter and Ms. Fleck.

   
   

5. At the end of the school day when Ms. Fleck retrieved Michael, she believed that he was stressed, but after conversations with him, she concluded that he seemed fine.

6. The second day of school, August 16, 2000, Ms. Fleck again took Michael to the Wesconnett cafeteria. Michael expressed a desire to return home, but Ms. Fleck left him there and he proceeded to his class with Ms. Carter.

7. Ms. Carter's class is conducted in a portable classroom. Entrance to the portable classroom is obtained via a ramp. During the lunch period of the second day of school,

   around 12:30 p.m., Michael was present at the midpoint of the ramp and screaming, "I want my Mommy." He was attempting to flee.

8. Ms. Carter was struggling with Michael in an effort to prevent him from running away. The struggle continued for about one minute. She managed at one point to get her arms under his arms in a manner that Ms. Carter described as the "Heimlich Maneuver," and dragged him toward the door of the portable classroom. As she approached the door she slapped Michael on the back of the head.

9. This was observed by Nickie Gunnoe, a first grade teacher with eight years of experience. Ms. Gunnoe had a clear view of the events which occurred on the ramp leading to the door of Ms. Carter's classroom.

10. Ms. Gunnoe believed that excessive force was used by Ms. Carter with regard to Michael. Because of this she reported the incident to the principal of Wesconnett, Michael Akers. This report was made on the following day, August 17, 2000.

11. When Ms. Fleck arrived at Wesconnett on August 16, 2000, to pick up Michael, she observed the children exit the classroom with Ms. Carter and saw that Michael was in the rear. He was crying. Michael said he wanted to take his candy home. He continued crying as Ms. Fleck escorted him toward her

    vehicle. Michael said that Ms. Carter had been mad at him three times.

12. En route to her vehicle Ms. Fleck approached

    
    

    Ms. Carter and a brief discussion ensued with regard to Michael. Ms. Carter told Ms. Fleck that Michael was going to have to "adjust."

13. When Ms. Fleck arrived at her vehicle she attempted to secure Michael into the seat. He continued to cry hysterically. Ms. Fleck discovered red marks under his arm and then proceeded with Michael directly to the Principal's office.

14. At the Principal's office Ms. Fleck had a discussion with Principal Akers. Law enforcement officers were called and joined in the discussion. Ms. Carter also entered the office.

15. Photographs of Michael's underarms were taken by police officers. The photographs depict a bright red mark under the left armpit. Ms. Fleck observed indentations consistent with fingernail impressions in the reddened area. These indentations could not be detected in the photographs. However, the angle from which the photographs were taken were not conducive to depicting the type of indentations which were described.

16. At the principal's office, when Ms. Carter appeared on the scene, Michael asserted that she was the person who had perpetrated the injuries which resulted in his acquisition of

    the red marks. Ms. Carter, at that time, as well as at the time of the hearing, had long fingernails.

17. The actions of Ms. Carter in forcefully grabbing Michael were entirely consistent with her duty to protect the child from running away from school and exposing himself to serious harm from traffic or other hazards. To the extent Michael suffered abrasions, they were the natural and probable consequences of his escape attempt. The slap administered to Michael's head, however, was in excess of the action necessary to protect Michael, and was a battery.

18. The next day, August 18, 2001, Michael told his mother that Ms. Carter had grabbed his hair and, "throwed him on the nappy mat," because he didn't have a blanket. As a result of this statement Ms. Fleck called the Principal which precipitated the arrival of a police evidence technician at her house.

19. Photographs were taken of Michael's head by the police evidence technician. The photographs were entirely consistent with the thesis that his scalp had been pierced by long fingernails when his head had been grasped. The wounds appeared in the photograph to be recently incurred.

20. Ms. Fleck had not observed any marks on Michael's body prior to August 16, 2001. It is apparent that the marks resulted from Ms. Carter's forcefully, and inexcusably, grabbing Michael's head.

21. Subsequent to the events of August 16, 2000, Michael did not attend school because he was traumatized by his experience with his first teacher, Ms. Carter.

22. During the 1996-97 school year, and again the following year, the Principal of Wesconnett, Mr. Akers, counseled Ms. Carter concerning the excessive use of force with children. In 1996 he specifically counseled her to avoid putting her hands on a child except in an emergency situation, when the child was in danger, or when the child was endangering others. Ms. Carter's personnel record reflects a satisfactory performance while employed at Wesconnett.

23. Ms. Carter's explanations of the events giving rise to Michael's injuries, to a substantial extent, did not comport with the other evidence adduced at the hearing.

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this cause, pursuant to Sections 120.569(1) and 120.57(1), Florida Statutes, and Article 1, Section 5, of the Duval County Teacher Tenure Act, Laws of Florida, Chapter 21197 (11941), as amended.

25. The burden of proof in this proceeding is on the Duval County School Board. The Board is required to prove the allegations against Respondent by a preponderance of the evidence. See Allen v. School Board of Dade of County, 571

    So. 2d 568 (Fla. 3d DCA 1990) and Dileo v. School Board of Dade

    
    

    County, 569 So. 2d 883 (Fla. 3d DCA 1990).

    
    

26. Article 1, Section 4 of the Duval County Teacher Tenure Act(Act), provides "causes for the discharge or the demotion of a teacher." Section 4(b) of the Act provides the following causes for discharge or demotion:

    (b) Persistent violation of or willful refusal to obey the laws of the State of Florida or regulations adopted by authority of law, relating to the public schools or the public school system.

    
    

27. The specific rule which Ms. Carter is alleged to have willfully refused to obey, in violation of Article 1, Section 4(b) of the Act, is Rule 6B-1.006(3)(a), (e), and (f), Florida Administrative Code, which provides that teachers:

    1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.

       
       

       1. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

          
          

       2. Shall not intentionally violate or deny a student’s legal rights.

       
       

28. Ms. Carter was also charged with violating

Rule 6B-1.001(3), Florida Administrative Code, which states that a teacher must be:

Aware of the importance of maintaining the respect and confidence of one’s colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that a final order be entered:

1. Finding that Ms. Carter violated Article 1, Section 4

   
   

   of the Duval County Teacher Tenure Act by refusing to obey the laws of the State of Florida or regulations adopted by authority of law, specifically, Rule 6B-1.006(3)(f), Florida Administrative Code, by intentionally denying a student's right to be free from being battered by his teacher.

2. Suspending Ms. Carter without pay for a period of one school year beginning on August 15, 2000, in lieu of discharge, and requiring as a condition of reinstatement, the completion of such anger management training as the Duval County Public Schools may deem appropriate, prior to the beginning of the 2001-02 school year.

DONE AND ENTERED this 15th day of May, 2001, in Tallahassee, Leon County, Florida.

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 2001.

COPIES FURNISHED:

Ernst D. Mueller, Esquire Office of the General Counsel City of Jacksonville

117 West Duval Street, Suite 480 Jacksonville, Florida 32202

David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard

Jacksonville, Florida 32207

John C. Freyer, Jr., Superintendent Duval County School Board

1701 Prudential Drive

Jacksonville, Florida 32207-2115

James A. Robinson, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

Charlie Crist Commissioner of Education Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

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 filed with the agency that will issue the Final Order in this case.

Docket for Case No: 00-003919

Orders for Case No: 00-003919