vs.
DEBRA E. WEST,
Respondent.
) Case No. 06-1914
The final hearing in this case was held on September 19, 2006, in Largo, Florida, before Bram D. E. Canter, an Administrative Law Judge of the Division of Administrative Hearings (DOAH).
For Petitioner: Laurie A. Dart, Esquire
For Respondent: Robert F. McKee, Esquire
Kelly & McKee, P.A.
The issues in this case are whether Respondent, Debra E. West, a middle school teacher, made inappropriate or disparaging remarks to her students or exposed them to unnecessary
embarrassment or disparagement; whether she failed to correct performance deficiencies; and, if so, whether the proposed penalty of dismissal is reasonable.
In a letter to Respondent dated November 28, 2005, the Superintendent of Schools for Pinellas County, Florida, Clayton Wilcox, informed Respondent that he intended to recommend her dismissal to the Pinellas County School Board (School Board) based on his receipt of "several complaints regarding Ms. West making disparaging remarks and embarrassing students in front of their peers.” At its meeting held on December 13, 2005, the School Board voted to dismiss Respondent. Respondent requested an administrative hearing to contest the School Board action, and the matter was referred to DOAH to conduct an evidentiary hearing.
At the final hearing, the School Board presented the testimony of Connie Kolosey, Daniel Stevens, C.D., J.G., N.R., T.J., J.T, Christopher Jackson, Janet Jackson, Ilene Taylor, Linda Dejessa, Valerie Brimm, and Teresa Anderson. The School Board's Exhibits 1 through 32 were admitted into evidence. Upon motion of the School Board, official recognition was taken of the Final Order issued in Charlie Christ, Commissioner of
Education v. Debra E. West, EPC Case No. 03-0086-RT (March 2, 2004). Respondent testified on her own behalf and also
presented the testimony of Tambra Hillard, Ruben Coffin, Brenda Works, and Alphonso Huntley. Respondent offered no exhibits.
A two-volume Transcript of the final hearing was filed with DOAH, and the parties timely filed Proposed Recommended Orders, which have been considered by the undersigned in the preparation of this Recommended Order.
Respondent has been employed as a teacher in the Pinellas County School District since August 20, 1991.
The allegations which are the subject of this case arose while Respondent was teaching sixth-grade physical education and health at Azalea Middle School (Azalea). Most of Respondent's students at Azalea are 12 years old.
Before becoming a teacher at Azalea, Respondent was a physical education teacher at Gibbs High School. In 2001, the School Board administratively transferred Respondent to Azalea from Gibbs High School to provide Respondent a "fresh start," following numerous complaints from parents beginning in 1997 about Respondent's making inappropriate remarks to students and disclosing student grades at Gibbs High School.
In 2003, the commissioner of education brought disciplinary action against Respondent for her alleged violations of state statutes and rules governing teachers during the time she was a teacher at Gibbs High School. On March 2,
2004, following an evidentiary hearing conducted by DOAH, the Education Practices Commission issued a Final Order suspending Respondent's educator's certificate for the 2004 summer session and placing Respondent on probation for two years.
In his Recommended Order in the earlier case against Respondent, the Administrative Law Judge made the following
findings:
Respondent made derogatory comments to students during the [2000-2001] school year. The derogatory comments included terms such as: fat, little slacker, stupid, sorry bunch of kids, Gomer Pyle, and Dutch Boy.
Respondent asked one of her students, "What's a black boy doing with a Dutch last name?" Respondent asked another student if the student was tired from walking the streets at night and called her "sleeping booty."
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Respondent has made derogatory comments to students in previous school years.
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Respondent read student grades aloud in class without the permission of the affected student in violation of District policy.
Respondent also read the names of students receiving a grade of "A," "B," or "C" thereby disclosing the [identity] of students with lower grades.
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Respondent has a history of disclosing student grades in class.
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Respondent read to the class the grades of [five students]. Each had failing grades. Respondent passed a test completed by A.S. down a row of students so that each student could see the test score on the front of the test and stated audibly that the only thing
A.S. "got right" on the test was the date. The comment embarrassed, upset, and humiliated A.S.
At Azalea, parents continued to complain that Respondent was making disparaging remarks that upset and embarrassed their children. The complaints resulted in multiple conferences between Respondent and Azalea administrators and, ultimately, to her receipt of poor performance evaluations and official reprimands.
Numerous students were transferred out of Respondent's classes at the request of parents whose children had complained to them about Respondent.
On November 28, 2005, Superintendent Wilcox notified Respondent by letter of his intent to recommend to the School Board that Respondent be dismissed. At the School Board's meeting of December 13, 2005, the School Board accepted the superintendent's recommendation for dismissal. Respondent was suspended without pay beginning December 13, 2005, pending the outcome of this administrative proceeding to review the School Board's action.
"Tiny Tot," "Shrimphead," and "Dumbo"
T.J., who is small for his age, stated that Respondent called him "tiny tot" and "shrimphead," which embarrassed and upset him. T.J. also said Respondent called him "dumbo." Respondent denies calling T.J. by these names.
No other student who testified at the final hearing said they heard Respondent call T.J. "tiny tot," "shrimphead," or "dumbo." No other student claimed that Respondent called him or her by one of these names. The evidence was insufficient to prove that Respondent called any student by another derogatory name. The only corroborating evidence presented by the School Board was the hearsay testimony of T.J.'s stepmother who said
T.J. told her that Respondent called him by these names.
Although T.J. might have been telling the truth,1 his testimony with regard to these insults, standing alone and taking into account his demeanor, was not persuasive. The School Board, therefore, failed to meet its burden to prove that Respondent called T.J. "tiny tot," "shrimphead," or "dumbo."
"You must have studied in the dark."
Respondent admits that she made the comment, "You must have studied in the dark," to T.J. and to other students on occasion, but denies that it was ever meant to disparage or to embarrass the students to whom the comment was directed.
Of all the disparaging comments that Respondent is alleged to have made, this one is the most innocuous. It is difficult to imagine how teachers could be held to a standard of refraining from any comment of this kind or risk dismissal.
However, many otherwise innocuous comments, if made in a disrespectful tone of voice, can be disparaging and can embarrass a student.
The testimony from the parents of several students was hearsay with regard to what Respondent said to their children, but it was not hearsay with regard to the parents' observations of the emotional distress that Respondent caused to their children. The emotional distress reported by the parents and which resulted in numerous complaints made to Azalea administrators about Respondent's comments, therefore, is persuasive evidence that Respondent's comments were often made in a tone of voice and under circumstances that caused the students to feel disparaged and embarrassed.
"Take your grow up pill."
T.J. also stated that Respondent told him in front of his classmates to “Take your grow-up pill.” He took this comment to be a reference to his small size, and he said the comment upset and embarrassed him. Respondent concedes that she told T.J. that he "needed to grow up" because he was acting immaturely by frequently failing to bring his folder to class,
but that she did not intend to belittle T.J. because of his size. Respondent, herself, is of small stature.
Respondent told other students to "Grow up" from time to time when she thought they were acting immaturely.
The preponderance of the evidence supports Respondent's contention that her comment to T.J. was not intended to belittle him for his small size.
A teacher's comment to "Grow up," or even to "Take a grow up pill," is a relatively innocuous comment that under ordinary circumstances should not cause a student to feel disparaged unless they are particularly sensitive. However, like the comment "You must have studied in the dark," the tone of voice used and other circumstances could make any student perceive the comment as disparaging and cause them to be
embarrassed.
"Dumb boys make dumb babies."
Several students testified that Respondent made the comment “Dumb boys make dumb babies” during her health class in the fall of 2005. Respondent admits making this comment and explained that it was intended to make her students think about the consequences of the choices they make in life. Respondent denies directing the comment to T.J. or to any other student in her class to indicate that she thought the student was dumb.
This comment is another example of Respondent's habit of making a comment by which she intends to convey a legitimate message with humor, but using words that also convey disparagement. The School Board's evidence was not persuasive that Respondent directed this comment to T.J. or any other student in her class to indicate she thought that student was dumb. However, the comment, even as explained by Respondent, was inappropriate because it indicated that Respondent had a low opinion of certain boys that "hung out" in the lunch room. Although Respondent's intended message was a good one, it is never appropriate for a teacher to refer to any student as being dumb.
Respondent presented the testimony of other teachers and school employees who said they sometimes observed Respondent's classes and never heard Respondent make inappropriate comments to her students. That evidence was not sufficient to rebut the School Board's evidence that Respondent made the inappropriate comments discussed above because the comments could have been made, and evidently were made, at times when Respondent was not observed by these other teachers and school employees.
There was other evidence presented by Respondent to show that she has a number of good teaching skills and is appreciated and even loved by many of her students. That
evidence is accepted as credible, but is not inconsistent with the charge that she made inappropriate and disparaging comments to some of her students.
Telephone Calls to Parents During Class
While teaching at Gibbs High School, Respondent would occasionally make a telephone call to parents during class, which Respondent considered to be an effective "classroom management technique," in the presence of students Connie Kolosey, an assistant principal at Azalea and Respondent's supervisor, said that when she discovered that Respondent had called a parent from the classroom, she directed Respondent not to do it anymore. Respondent admits that Ms. Kolosey told her that making calls to parents during class was "not done at Azalea," but Respondent claims she was not told to stop.
The School Board presented evidence to prove that Respondent continued to call parents from her classroom to discuss their children's low grades or misbehavior in a manner that allowed students to hear the conversations or, at least, to know which students were the subject of the conversations. Respondent said she never called parents during class time. She said that she sometimes called parents from the telephone in her classroom, but not during class time. Respondent also denied ever divulging confidential information about a student in front of other students.
However, there appeared to be agreement that, on one occasion, a student, J.T., called his mother during class and then handed the telephone to Respondent so she could talk to his mother. Even under Respondent's version of the event, having the telephone conversation with J.T.'s mother during class and within sight and hearing of the other students was inappropriate and reasonably calculated to embarrass J.T.
In another incident in which the mother of a student complained that she was called by Respondent about her child during class, Respondent told Theresa Anderson, the principal of Azalea, that the call was not made during class. However,
Ms. Anderson later discovered that Respondent had not made the call from a certain school phone as Respondent had claimed, but from Respondent's own cell phone. Respondent's version of the event, therefore, is discredited, and the more persuasive evidence establishes this as a second instance in which Respondent called a parent during class, which exposed the student to unnecessary embarrassment.
Respondent admitted that she would occasionally pretend to call a parent from the classroom as a classroom management technique. According to Respondent, instead of actually calling a parent, she would dial her own mother's phone number or no number at all and then pretend to have a conversation about the low grade or misbehavior of a student.
Although Respondent did this in a manner that purposely allowed her students to see her make the call and to hear enough to know that Respondent was having a serious discussion with a parent about a student, Respondent denies that any student in her class knew whose parent she was pretending to call. That claim is not credible because, unless Respondent made these pretend calls in conjunction with an event related to a student's low grade or misbehavior, it would not serve its purpose as a classroom management technique. In other words, it is more likely that when Respondent made a pretend call to a parent, the students in her class had some idea which student was in trouble and why.2 This practice of Respondent, therefore, was inappropriate and exposed students to unnecessary embarrassment.
Discussing Low Grades in the Classroom
Respondent denied ever divulging student grades in class but admitted that she rewarded students who received A's and B's by calling them to the front of the class and awarding them “Azalea bucks.” Students who received A’s were given two Azalea bucks, and students who received B’s were given one Azalea buck. Azalea bucks could be redeemed for ice cream. By calling up the A and B students, Respondent created a situation in which the students who made lower grades were also identified.
No evidence was presented by the School Board about its policies regarding the recognition given to students who make good grades. The School Board did not dispute that Azalea identifies honor roll students. Any time that a school recognizes students for their academic achievement, that recognition will necessarily have the effect of identifying the students who have not done as well. That is a reasonable consequence and does not cause the recognition of the best students to be an act of disparagement against all the other students.
Students N.R. and J.G. said Respondent read student grades out loud in class. J.G. said Respondent read the grades of students who received D’s and F’s. N.R. said Respondent would line students up according to the grades they got. Their testimony was persuasive to prove that Respondent conducted her classes in such a way that student grades, including low grades, were sometimes made known to other students.
Failure to Correct Performance Deficiencies
Administrative officials at Azalea spent a considerable amount of time responding to complaints from parents about Respondent, investigating allegations against her, as well as counseling and disciplining Respondent. Three consecutive "success plans" were developed for Respondent in an attempt to change her style of speaking to students to eliminate
the disparaging remarks and to prevent any further disclosure of a student's low grade.
When the findings of the prior administrative hearing involving Respondent's problems at Gibbs High School are compared to the findings set forth above regarding Respondent's problems at Azalea, it appears that Respondent's latest infractions are less egregious. However, Respondent's deficiencies have not been corrected.
It is significant that Respondent's deficiencies have been moderated only a small degree from the past despite her being on probation and repeatedly disciplined. Although slightly moderated, Respondent's deficiencies continue to upset students, cause numerous complaints to be made by parents, and create considerable inconveniences for school administrators.
Two assistant principals at Azalea and an administrator in the Pinellas County School District's Office of Professional Standards were all of the opinion that Respondent is ineffective as a teacher due to her performance deficiencies.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57 and Subsection 1012.33(6)(a), Florida Statutes (2005).
No due process issue was raised by Respondent regarding the procedures followed by the School Board leading to the referral of this matter to DOAH.
The School Board, as Petitioner, has the burden to prove its factual allegations against Respondent by a preponderance of the evidence. McNeil v. Pinellas County School
Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Sublett v. Sumter County School Board, 664 So. 2d 1178 (Fla. 5th DCA 1995).
The superintendent's letter of November 28, 2005, alleged that Respondent violated "School Board Policy 8.25(1)(n) Inappropriate or Disparaging Remarks to or About Students or Exposing a Student to Unnecessary Embarrassment or Disparagement, 8.25(1)(t) Failure to Correct Performance Deficiencies, 8.25(1) Failure to Comply With School Board Policy, State Law or Appropriate Contractual Agreement."
The School Board met its burden to prove by a preponderance of the evidence that Respondent violated
Section 8.25(n) by making inappropriate and disparaging remarks to or about students and exposing students to unnecessary embarrassment and disparagement.
The School Board met its burden to prove by a preponderance of the evidence that Respondent violated Section 8.25(1)(t) by failing to correct her performance deficiencies.
Although Section 8.25(1) was cited in the superintendent's letter for Respondent's alleged "Failure to Comply With School Board Policy, State Law or Appropriate Contractual Agreement," that offense is described in
Section 8.25(1)(x). An incorrect citation in the charging instrument to the law violated is not fatal if the alleged offending acts are adequately described. B.H. v. State, 645 So. 2d 987 (Fla. 1994); Maravel v. Department of Professional Regulation, 498 So. 2d 481 (Fla. 1st DCA 1987). In this case, however, the Superintendent's letter, which constitutes the charging instrument, did not adequately describe which School Board policies (other than Sections 8.25(1)(n) and 8.25(1)(t)), state laws or contractual agreements Respondent is being charged with violating and on what factual basis.
Because it was found that Respondent violated two School Board policies as discussed above, the School Board met its burden to prove that Respondent also violated Section 8.25(1)(x). However, Respondent's violation of Section 8.25(1)(x) does not constitute a separate offense and, therefore, does not provide additional support for the proposed penalty of dismissal.
In its Proposed Recommended Order, the School Board also argued that Respondent violated the School Board policy in Section 8.25(1)(u) (Insubordination). This violation, however,
was not alleged in the charging instrument. An administrative complaint seeking disciplinary action must identify the statutes, rules, or policies that a respondent is charged with violating and allege the specific acts or omissions that form the grounds for the violations charged. See Ghani v. Department of Health, 714 So. 2d 1113 (Fla. 1st DCA 1998); Cottrill v.
Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996). Because the School Board's charging instrument did not charge Respondent with violating Section 8.25(1)(u), nor allege acts of insubordination, Respondent cannot be found guilty of the charge.
The penalty range for a violation of Section 8.25(1)(n) is "caution" to dismissal. The same penalty range is applicable for a violation of Section 8.25(1)(t).
The School Board follows a system of "progressive discipline," which makes the disciplinary action taken against Respondent for infractions that occurred while Respondent was a teacher at Gibbs High School relevant to the question of whether the dismissal of Respondent is reasonable.
The School Board has the authority to dismiss Respondent pursuant to Subsections 1001.42(5) and 1012.22(1)(f), Florida Statutes (2005), for "just cause." "Just cause" is defined to include misconduct in office. § 1012.33(1)(a), Fla. Stat. (2005).
Florida Administrative Code Rule 6B-4.009(3) states:
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., 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.
Code of Ethics of the Education Profession provides that "The educator's primary professional concern will always be for the student and for the development of the student's potential." Fla. Admin. Code R. 6B-1.001(2).
The Principles of Professional Conduct for the Education Profession in Florida include the obligation of every teacher "to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health," to "not intentionally expose a student to unnecessary embarrassment or disparagement," and to "keep in confidence personally identifiable information obtained in the course of professional service." Fla. Admin Code R. 6B-1.006(3)(a), (e), and (i).
Respondent failed to conform to the code and principles described above.
Evidence of Respondent's impaired effectiveness in the school system is the fact that her transfer from Gibbs High School to Azalea Middle School did not result in the correction
of her performance deficiencies. She has now failed at two schools in the school system to bring her teaching performance into conformance with the code of ethics and principles of professional conduct. Her impaired ineffectiveness is also shown by the numerous students that have been transferred out of her classes on the requests or demands of parents whose children were intimidated by Respondent and emotionally distraught because of the things she said to them. An effective teacher does not drive students away in this manner.
Based on the violations of School Board policies found in this case, and taking into account the prior disciplinary action taken against Respondent, the School Board has shown just cause to dismiss Respondent.
RECOMMENDED that the Pinellas County School Board issue a final order finding that Respondent violated School Board policies set forth in Sections 8.25(1)(n), (t), and (x) and dismissing her from her employment with the School Board.
DONE AND ENTERED this 13th day of December, 2006, in Tallahassee, Leon County, Florida.
BRAM D. E. CANTER
Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 2006.
1/ Although the School Board witnesses expressed awareness of and concern about the impressionable nature of young students and their sensitivity to the things they are told by an adult teacher, these witnesses seemed not to recognize how their discussions with the students about the allegations against Respondent, including asking several students to fill out a "WITNESS/VICTIM STATEMENT" form, might impress the students and affect their responses.
2/ J. G. stated that Respondent would have the student stand next to her when she made the call.
Laurie A. Dart, Esquire Pinellas County Schools
Melissa C. Mihok, Esquire Kelly & McKee, P.A.
Robert F. McKee, Esquire Kelly & McKee, P.A.
Dr. Clayton M. Wilcox, Superintendent School Board of Pinellas County
Daniel J. Woodring, General Counsel Department of Education
Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514
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.
